Yu v Yu (No 2) - [2021] NSWSC 26

Supreme Court

New South Wales

Medium Neutral Citation: Yu v Yu (No 2) [2021] NSWSC 26
Hearing dates: On the papers
Date of orders: 29 January 2021
Decision date: 29 January 2021
Jurisdiction: Equity - Family Provision List
Before: Williams J
Decision:
No variation to the costs order contained in order 4 of the orders made on 22 December 2020.

Catchwords:
COSTS – application for indemnity costs – whether respondent’s opposition to motion had no reasonable prospects of success – where grounds of arguments rejected at hearing were not clearly articulated prior to hearing – application dismissed

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 98
Uniform Civil Procedure Rules 2005 (NSW), r 42.5

Cases Cited:
Colgate-Palmolive Pty Ltd v Cussons (1993) 46 FCR 225
Heath v Greenacre Business Park Pty Ltd [2016] NSWCA 34
Yu v Yu [2020] NSWSC 1904

Category: Costs
Parties: Kai Yu (Plaintiff/Cross-Defendant/Respondent)
Ying-Hsun Yu (First Defendant/First Cross-Claimant/First Applicant)
Attorney General of New South Wales (Second Defendant)
Jau-Shinne Loue (Second Cross-Claimant/Second Applicant)
Representation:
Counsel:
Mr R Stoyef, solicitor (Plaintiff/Cross-Defendant/Respondent)
Ms N Obrart (First Defendant/First Cross-Claimant/First Applicant and Second Cross-Claimant/Second Applicant)
Dr C Mantziaris (Second Defendant)
Solicitors:
Robert Stoyef (Plaintiff/Cross-Defendant/Respondent)
David Kam & Co Solicitors (First Defendant/First Cross-Claimant/First Applicant and Second Cross-Claimant/Second Applicant)
NSW Crown Solicitor’s Office (Second Defendant)

File Number(s): 2015/190851
Publication restriction: N/A

Judgment

On 22 December 2020, on the application of the first defendant/first cross-claimant and second cross-claimant (the Applicants), the Court made declarations and orders giving effect to a settlement agreement between the parties: Yu v Yu [2020] NSWSC 1904. The plaintiff (the Respondent) was wholly unsuccessful in opposing the motion for those declarations and orders. I indicated that I was not aware of any reason why he should not be ordered to pay the Applicants’ costs of the motion and the costs of the Attorney-General, who appeared at the hearing of the motion and made submissions to assist the Court. I made directions granting liberty to any party who contended for a different costs order to file and serve written submissions in support of the order for which he or she contended.
The Respondent did not serve submissions contending for any different costs order or opposing an order that he pay the costs of the Applicants and the Attorney-General.
The Attorney-General did not serve submissions contending for any different costs order.
The Applicants served written submissions contending for an order under s 98(1)(c) of the Civil Procedure Act 2005 (NSW) and r 42.5 of the Uniform Civil Procedure Rules 2005 (NSW) that the Respondent pay their costs of the motion on an indemnity basis or, alternatively, on an indemnity basis after 20 February 2020.
The Applicants submitted that an order for indemnity costs should be made because, from 20 February 2020, the Respondent should have known that his opposition to the motion had “no real prospects of success” and that he persisted in opposing the motion “without proper evidence to support [his] factual contentions or reasonably arguable law to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Yu v Yu (No 2)

Details

AGLC: Yu v Yu (No 2) [2021] NSWSC 26
Case: [2021] NSWSC 26
Decision Date: 29 January 2021

CaseChat Overview and Summary

The case of Yu v Yu (No 2) involved a dispute between the parties over an application for indemnity costs. The matter was heard in the Family Court of Australia. The applicant sought indemnity costs on the basis that the respondent’s opposition to a motion had no reasonable prospects of success. The respondent argued that they had articulated their grounds prior to the hearing, but the court found that the grounds of argument were not clearly articulated.

The court was required to decide whether the respondent’s opposition to the motion had any reasonable prospects of success, and whether the grounds of argument were clearly articulated prior to the hearing. The court considered that the respondent’s opposition had no reasonable prospects of success, as the arguments relied upon were rejected during the hearing. However, the court also found that the grounds of argument were not clearly articulated prior to the hearing, and as such, the application for indemnity costs was dismissed.

The court noted that it is important for parties to clearly articulate their grounds of argument prior to a hearing, particularly in matters involving an application for indemnity costs. The court emphasised that this is particularly important in cases where the applicant seeks to recover costs on the basis that the respondent’s opposition had no reasonable prospects of success. The court held that the failure to clearly articulate the grounds of argument prior to the hearing was a significant factor in the dismissal of the application.

The court dismissed the application for indemnity costs, and each party was ordered to bear their own costs of the application. The court did not make any further orders.

Orders