Zheng v Ianni & Ors (No.4) [2021] NSWDC 559

Zheng v Ianni & Ors (No.4) [2021] NSWDC 559

The plaintiff obtained a judgment against the third and fourth defendants for $317,180 plus costs after they rejected an offer to compromise for $101,000 plus costs, so r 42.14 was engaged and indemnity costs from 24 August 2021 would have been justified against them. However, because most costs pre-dated that period and an assessment would likely be protracted and costly, a gross lump sum order was appropriate. The evidence supported a broad-brush lump sum of $190,000 against the third and fourth defendants, factoring in prior costs received, pre-litigation costs, an appropriate discount, and the limited period to which indemnity costs applied. The fifth defendant was not liable for the...

Jurisdiction
Australia
Judgment Date
18 October 2021
Procedural Posture
Civil Costs Application / Application on the Papers to Vary Costs Orders After Judgment
Outcome
Costs orders made on 30 September 2021 varied; gross lump sum costs order made against the third and fourth defendants, with the fifth defendant liable for costs as agreed or assessed only to the specified extent.
Legal Topics
['indemnity Costs' 'offer of Compromise' 'calderbank Offer' 'gross Lump Sum Costs Order' 'authenticity of Documents' 'costs Assessment']
['costs' 'civil Procedure'] ['indemnity Costs' 'offer of Compromise' 'calderbank Offer' 'gross Lump Sum Costs Order' 'authenticity of Documents' 'costs Assessment']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Civil Costs Application / Application on the Papers to Vary Costs Orders After Judgment

Legal Issues

  1. 1 ['Whether the plaintiff should receive indemnity costs from 24 August 2021 against the third and fourth defendants following rejection of an offer of compromise or Calderbank offer.' 'Whether a partial indemnity costs order should be made based on notices concerning authenticity of documents.' 'Whether the Court should make a gross lump sum costs order under s 98(4) of the Civil Procedure Act 2005 (NSW).' 'Whether the fifth defendant should be jointly liable for the whole of any lump sum costs order.']

Ratio Decidendi

The plaintiff obtained a judgment against the third and fourth defendants for $317,180 plus costs after they rejected an offer to compromise for $101,000 plus costs, so r 42.14 was engaged and indemnity costs from 24 August 2021 would have been justified against them. However, because most costs pre-dated that period and an assessment would likely be protracted and costly, a gross lump sum order was appropriate. The evidence supported a broad-brush lump sum of $190,000 against the third and fourth defendants, factoring in prior costs received, pre-litigation costs, an appropriate discount, and the limited period to which indemnity costs applied. The fifth defendant was not liable for the...

Court Disposition

Costs orders made on 30 September 2021 varied; gross lump sum costs order made against the third and fourth defendants, with the fifth defendant liable for costs as agreed or assessed only to the specified extent.

Orders

  • ["Pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW) the third and fourth defendants are to pay the plaintiff's costs in the gross sum of $190,000." "The fifth defendant is to pay the plaintiff's costs, as agreed or assessed, noting that the fifth defendant is jointly liable with the third and fourth...