Sui v Jiang and Anor (No. 2) [2021] NSWSC 572

Sui v Jiang and Anor (No. 2) [2021] NSWSC 572

Although the Defendants succeeded on the merits, their significant failures to comply with court orders and their duty under s.56(3) Civil Procedure Act 2005 caused a fractured hearing, additional interlocutory hearings and unnecessary use of judicial resources. A single order requiring the Plaintiff to pay 50% of the Defendants' costs on the ordinary basis up to 30 April 2021, while revoking the earlier interlocutory costs order, was a just and proportionate way to resolve all costs issues.

Jurisdiction
Australia
Judgment Date
21 May 2021
Procedural Posture
Civil Claim; Costs Determination / On the Papers Following Final Judgment for the Defendants
Outcome
The Court made the foreshadowed costs order, revoked the earlier interlocutory costs order, and ordered the Defendants to pay the Plaintiff's costs of the post-30 April 2021 costs submissions.
Legal Topics
['costs Following the Event' 'ordinary Basis Costs' 'indemnity Costs' 'case Management Orders' 'statutory Duty of Parties in Civil Proceedings' 'failure to Comply With Court Orders']
['costs' 'civil Procedure'] ['costs Following the Event' 'ordinary Basis Costs' 'indemnity Costs' 'case Management Orders' 'statutory Duty of Parties in Civil Proceedings' 'failure to Comply With Court Orders']

Case Brief

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Procedural Posture

Civil Claim; Costs Determination / On the Papers Following Final Judgment for the Defendants

Legal Issues

  1. 1 ['Whether the Defendants, having succeeded on the merits, should receive costs following the event or a reduced costs order because of earlier failures to comply with court orders and s.56(3) Civil Procedure Act 2005.' "Whether the foreshadowed order that the Plaintiff pay 50% of the Defendants' costs on the ordinary basis was just and proportionate." 'Whether the interlocutory indemnity costs order made in favour of the Plaintiff on 22 October 2020 should remain or be revoked as part of a single costs order.' 'Who should pay the costs of the written submissions on costs after 30 April 2021.']

Ratio Decidendi

Although the Defendants succeeded on the merits, their significant failures to comply with court orders and their duty under s.56(3) Civil Procedure Act 2005 caused a fractured hearing, additional interlocutory hearings and unnecessary use of judicial resources. A single order requiring the Plaintiff to pay 50% of the Defendants' costs on the ordinary basis up to 30 April 2021, while revoking the earlier interlocutory costs order, was a just and proportionate way to resolve all costs issues.

Court Disposition

The Court made the foreshadowed costs order, revoked the earlier interlocutory costs order, and ordered the Defendants to pay the Plaintiff's costs of the post-30 April 2021 costs submissions.

Orders

  • ['The Plaintiff is to pay 50% of the costs of the proceedings of the Defendants calculated on the ordinary basis up to 30 April 2021.' 'The interlocutory costs order made in favour of the Plaintiff on 22 October 2020 is revoked.' "The Defendants are to pay the Plaintiff's costs, calculated on the ordinary basis,...