Bao v Li (No 3) [2024] NSWSC 162

Bao v Li (No 3) [2024] NSWSC 162

The first defendant's conduct in refusing to comply with prior orders and in bringing a manifestly deficient motion justified an order that she pay the plaintiff’s and second defendant’s costs of her motion on an indemnity basis; similarly, the second defendant’s motion was necessitated by her non-compliance, justifying an indemnity award. There was sufficient evidentiary basis for a gross sum costs order in favour of the second defendant, but the total claimed required a substantial discount for irrelevant or excessive charges, so the sum was fixed at $20,000 inclusive of GST.

Parties
Plaintiff: Zhong Bao; First Defendant: Cheryl Shu Yan Li; Second Defendant: Zhiyong Tao
Jurisdiction
Australia
Judgment Date
23 February 2024
Procedural Posture
Equity (real Property) Costs Judgment / Post Trial: Determination of Costs Following Substantive Proceedings and Motions
Outcome
Orders for indemnity costs and gross sum costs order made against the first defendant.
Legal Topics
Costs, Indemnity Costs, Gross Sum Costs Order, Contempt, Real Property Trusts
Equity Real Property Civil Procedure Costs Indemnity Costs Gross Sum Costs Order Contempt Real Property Trusts

Case Brief

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Parties

Zhong Bao

Plaintiff

Cheryl Shu Yan Li

First Defendant

Zhiyong Tao

Second Defendant

Procedural Posture

Equity (real Property) Costs Judgment / Post Trial: Determination of Costs Following Substantive Proceedings and Motions

Legal Issues

  1. 1 Whether indemnity costs should be awarded against the first defendant.
  2. 2 Whether a gross sum costs order is appropriate in the circumstances of protracted litigation and animosity between parties.
  3. 3 Responsibility for costs between plaintiff, first defendant, and second defendant for two notices of motion.

Ratio Decidendi

The first defendant's conduct in refusing to comply with prior orders and in bringing a manifestly deficient motion justified an order that she pay the plaintiff’s and second defendant’s costs of her motion on an indemnity basis; similarly, the second defendant’s motion was necessitated by her non-compliance, justifying an indemnity award. There was sufficient evidentiary basis for a gross sum costs order in favour of the second defendant, but the total claimed required a substantial discount for irrelevant or excessive charges, so the sum was fixed at $20,000 inclusive of GST.

Court Disposition

Orders for indemnity costs and gross sum costs order made against the first defendant.

Orders

  • First defendant to pay the plaintiff's costs of her motion on an indemnity basis as agreed or assessed.
  • First defendant to pay the second defendant's costs of her motion on an indemnity basis.