Jiang v Chen (No. 2) [2020] NSWSC 921

Jiang v Chen (No. 2) [2020] NSWSC 921

UCPR r 42.34 did not apply because the proceedings were properly characterised as proceedings for the execution of a trust or a declaration that a trust subsists under District Court Act 1973, s 134(1)(e), and the trust fund exceeded the District Court's $20,000 limit for that jurisdiction. The plaintiffs were therefore entitled to costs as successful parties. Indemnity costs were refused because the defendant had not engaged in misconduct as a litigant, and although the Calderbank letter contained a genuine element of compromise, rejection of it was not unreasonable because the plaintiffs' evidence significantly strengthened after the offer was made.

Jurisdiction
Australia
Judgment Date
21 July 2020
Procedural Posture
Costs Application in Equity Proceedings / After Judgment; Decided in Chambers on the Papers
Outcome
Defendant ordered to pay the plaintiffs' costs on the ordinary basis; indemnity costs refused.
Legal Topics
['costs Follow the Event' 'ucpr R 42.34' 'district Court Equitable Jurisdiction' 'indemnity Costs' 'calderbank Offer' 'declaration of Trust']
['costs' 'civil Procedure' 'equity' 'trusts'] ['costs Follow the Event' 'ucpr R 42.34' 'district Court Equitable Jurisdiction' 'indemnity Costs' 'calderbank Offer' 'declaration of Trust']

Case Brief

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Procedural Posture

Costs Application in Equity Proceedings / After Judgment; Decided in Chambers on the Papers

Legal Issues

  1. 1 ['Whether UCPR r 42.34 applied so that no costs order should ordinarily be made because the proceedings could have been commenced in the District Court.' "Whether the plaintiffs should receive indemnity costs because of the defendant's alleged fraud or misconduct." 'Whether the plaintiffs should receive indemnity costs because the defendant rejected an alleged Calderbank offer.']

Ratio Decidendi

UCPR r 42.34 did not apply because the proceedings were properly characterised as proceedings for the execution of a trust or a declaration that a trust subsists under District Court Act 1973, s 134(1)(e), and the trust fund exceeded the District Court's $20,000 limit for that jurisdiction. The plaintiffs were therefore entitled to costs as successful parties. Indemnity costs were refused because the defendant had not engaged in misconduct as a litigant, and although the Calderbank letter contained a genuine element of compromise, rejection of it was not unreasonable because the plaintiffs' evidence significantly strengthened after the offer was made.

Court Disposition

Defendant ordered to pay the plaintiffs' costs on the ordinary basis; indemnity costs refused.

Orders

  • ["The defendant shall pay the plaintiff's costs of these proceedings incurred up to today on the ordinary basis." 'Liberty to apply.']