Mao v Bao (No 3) [2023] NSWSC 261

Mao v Bao (No 3) [2023] NSWSC 261

Because Mr Bao's cross-claim was brought as a response to Mr Mao's claim and no apportionment of jointly attributable costs was sought, costs up to 31 August 2021 should generally favour Mr Mao on the proceedings while allowing Mr Bao only costs solely referable to the successful cross-claim, subject to exclusions for costs thrown away by amendments and costs solely referable to failed relief for the period before 31 January 2010. After the August 2021 judgment, the proceeding was substantially concerned with quantifying Mr Mao's obligation to account, a process caused by Mr Mao's earlier failure to account, so Mr Mao should pay Mr Bao's costs from 1 September 2021 except for the costs...

Jurisdiction
Australia
Judgment Date
24 March 2023
Procedural Posture
Costs / Costs Determination After Principal Judgment and Further Account and Set Off Rulings; on the Papers
Outcome
Costs orders made with differentiated pre- and post-31 August 2021 costs liabilities and set-off of costs liabilities as at the date of judgment.
Legal Topics
['party/party Costs' 'costs Follow the Event' 'costs of Claim and Cross Claim' 'apportionment of Jointly Attributable Costs' 'set Off of Costs Liabilities']
['costs' 'equity'] ['party/party Costs' 'costs Follow the Event' 'costs of Claim and Cross Claim' 'apportionment of Jointly Attributable Costs' 'set Off of Costs Liabilities']

Case Brief

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Procedural Posture

Costs / Costs Determination After Principal Judgment and Further Account and Set Off Rulings; on the Papers

Legal Issues

  1. 1 ["Whether Mr Bao's partial success on the cross-claim justified limiting or discounting his costs of the cross-claim." 'How costs jointly attributable to both the claim and cross-claim should be treated where the Court was not asked to apportion costs.' 'Whether different costs orders should apply before and after delivery of the August 2021 judgment.' "Whether the parties' costs liabilities should be set off against each other."]

Ratio Decidendi

Because Mr Bao's cross-claim was brought as a response to Mr Mao's claim and no apportionment of jointly attributable costs was sought, costs up to 31 August 2021 should generally favour Mr Mao on the proceedings while allowing Mr Bao only costs solely referable to the successful cross-claim, subject to exclusions for costs thrown away by amendments and costs solely referable to failed relief for the period before 31 January 2010. After the August 2021 judgment, the proceeding was substantially concerned with quantifying Mr Mao's obligation to account, a process caused by Mr Mao's earlier failure to account, so Mr Mao should pay Mr Bao's costs from 1 September 2021 except for the costs...

Court Disposition

Costs orders made with differentiated pre- and post-31 August 2021 costs liabilities and set-off of costs liabilities as at the date of judgment.

Orders

  • ['For the period up to and including the delivery of judgment on 31 August 2021, the defendant pay the costs thrown away by reason of the amendments to his statement of cross-claim.' "For the period up to and including the delivery of judgment on 31 August 2021, the plaintiff pay the defendant's costs solely...