Deng v Lieu (No 2) [2009] NSWIRComm 85

Deng v Lieu (No 2) [2009] NSWIRComm 85

The appellant was entitled to party and party costs up to and including 21 August 2006 and indemnity costs thereafter because the fourth offer was a genuine and significant compromise, remained effectively open for sufficient time through ongoing negotiations, was made after several prior attempts to resolve long-running proceedings, and the appeal judgment was no more favourable to the first and second respondents than the offer. Earlier offers did not justify indemnity costs because the first was ambiguous, the second was not a genuine compromise, and the third was open for too short a time. Interest was refused because the Civil Procedure Act 2005 did not apply to the Court and no...

Jurisdiction
Australia
Judgment Date
04 June 2009
Procedural Posture
Appeal Costs Determination in Unfair Contract Proceedings Under S 106 of the Industrial Relations Act 1996 / Written Submissions on Costs After Leave to Appeal Was Granted and the Appeal Upheld
Outcome
Prior costs orders were vacated or set aside; the appellant received party and party costs up to and including 21 August 2006 and indemnity costs thereafter against the first and second respondents; the third respondent received party and party costs against the first and second respondents; interest and declaratory...
Legal Topics
['unfair Contract' 'appeal Costs' 'calderbank Offers' 'offers of Compromise' 'indemnity Costs' 'party and Party Costs' 'interest on Costs' 'costs of Submitting Party']
['industrial Law' 'civil Procedure' 'costs'] ['unfair Contract' 'appeal Costs' 'calderbank Offers' 'offers of Compromise' 'indemnity Costs' 'party and Party Costs' 'interest on Costs' 'costs of Submitting Party']

Case Brief

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Procedural Posture

Appeal Costs Determination in Unfair Contract Proceedings Under S 106 of the Industrial Relations Act 1996 / Written Submissions on Costs After Leave to Appeal Was Granted and the Appeal Upheld

Legal Issues

  1. 1 ["Whether the appellant should receive indemnity costs for the first instance proceedings and appeal because of the first and second respondents' conduct." "Whether any of the appellant's settlement offers justified indemnity costs because they were genuine offers of compromise unreasonably rejected." 'Whether the appellant should receive interest on costs and disbursements under s 101(4) of the Civil Procedure Act 2005.' 'Whether the Court should declare that Paul Lieu and Landmark Enterprises Pty Ltd have no interest in the shareholding of Dengs Investments Pty Ltd.' 'Whether the third respondent should receive party and party or indemnity costs at first instance and on appeal.']

Ratio Decidendi

The appellant was entitled to party and party costs up to and including 21 August 2006 and indemnity costs thereafter because the fourth offer was a genuine and significant compromise, remained effectively open for sufficient time through ongoing negotiations, was made after several prior attempts to resolve long-running proceedings, and the appeal judgment was no more favourable to the first and second respondents than the offer. Earlier offers did not justify indemnity costs because the first was ambiguous, the second was not a genuine compromise, and the third was open for too short a time. Interest was refused because the Civil Procedure Act 2005 did not apply to the Court and no...

Court Disposition

Prior costs orders were vacated or set aside; the appellant received party and party costs up to and including 21 August 2006 and indemnity costs thereafter against the first and second respondents; the third respondent received party and party costs against the first and second respondents; interest and declaratory...

Orders

  • ['All prior costs orders in Matter Nos IRC 2821 of 2001 and IRC 535 of 2007 are vacated or set aside as the case may be.' "The first and second respondents shall jointly and severally pay the appellant's costs up to and including 21 August 2006 of proceedings in Matter Nos IRC 2821 of 2001 and IRC 535 of 2007 on a...