Ke Qin Ren v Hong Jiang; Yi Cheng Jiang v Wan Ze Property Development (Aust) Pty Ltd (in liq) [2015] NSWCA 22

Ke Qin Ren v Hong Jiang; Yi Cheng Jiang v Wan Ze Property Development (Aust) Pty Ltd (in liq) [2015] NSWCA 22

The applicants' Calderbank offer, which involved a genuine element of compromise, was unreasonably refused by the respondents, thereby justifying indemnity costs for part of the proceedings relating to the abuse of process motion incurred after the offer expired. Other requests for favourable variation of the costs orders, based on success on points not pleaded below, were rejected except for the costs thrown away by amendment, which was conceded.

Jurisdiction
Australia
Judgment Date
23 February 2015
Procedural Posture
Appeal — Costs Applications / Ruling on Costs Following Appellate Determination
Outcome
Orders as to costs varied; applications regarding further costs orders mostly dismissed.
Legal Topics
['costs' 'calderbank Offer' 'indemnity Costs' 'variation of Costs Orders']
['civil Procedure'] ['costs' 'calderbank Offer' 'indemnity Costs' 'variation of Costs Orders']

Case Brief

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Procedural Posture

Appeal — Costs Applications / Ruling on Costs Following Appellate Determination

Legal Issues

  1. 1 ['Whether indemnity costs should be awarded following a Calderbank offer' 'Whether costs should be varied due to success on points not taken at first instance' 'Appropriate costs orders where party unreasonably failed to accept settlement offer']

Ratio Decidendi

The applicants' Calderbank offer, which involved a genuine element of compromise, was unreasonably refused by the respondents, thereby justifying indemnity costs for part of the proceedings relating to the abuse of process motion incurred after the offer expired. Other requests for favourable variation of the costs orders, based on success on points not pleaded below, were rejected except for the costs thrown away by amendment, which was conceded.

Court Disposition

Orders as to costs varied; applications regarding further costs orders mostly dismissed.

Orders

  • ['Vary order 6 (made 13 November 2014) so that Ms Hong Jiang and Mr Yongan Xie pay the costs of the 1st, 2nd and 4th appellants of the appeal (including applications for leave and the notice of motion filed 26 April 2013 but excluding costs thrown away by amendment), on an indemnity basis in respect of costs of the...