Sui v Jiang and Anor

The Court's Provisional View Concerning Costs

1. It is appropriate to set out what was said in Sui v Jiang and Anor at [136]-[145] in explaining the Court's approach to the foreshadowed costs order: "136 The ordinary rule is that costs should follow the event and, subject to what follows, there is no reason to depart from that rule in this case. The exception to this arises from the default of Mr Jiang and Fulin as at 30 September 2020, when orders of the Court had not been complied with concerning the filing of evidence so that leave was required for Mr Jiang and Fulin to rely upon the evidence of Ms Lee (see [9]-[19] above). 137 Mr Sui seeks an order that Mr Jiang and Fulin pay on an indemnity basis Mr Sui's costs incurred by reason of the late admission of Ms Lee's affidavit into evidence, regardless of what costs order is made in the proceedings as a whole. 138 It was submitted for Mr Jiang and Fulin that, notwithstanding the late filing of evidence from Ms Lee, there was no prejudice to Mr Sui and this aspect did not result in the hearing taking any more time than originally anticipated. 139 The Defendants submitted that the appropriate costs order for the whole hearing ought be that costs follow the event. 140 There was a clear failure by Mr Jiang and Fulin to comply with orders of the Court (including a guillotine order) prior to the hearing on 30 September 2020. As noted earlier, that hearing was listed with a one-day estimate apparently upon the basis that the claim would be uncontested. What occurred was that Mr Jiang and Fulin engaged a new legal team on the eve of the hearing which gave rise to a flurry of activity, including notification of a series of objections to evidence. In those circumstances, there was no realistic prospect that the hearing would be completed in one day. In addition, there was a belated application by Mr Jiang and Fulin to adduce evidence from Ms Lee concerning the translation of the 2017 written agreement. This was a very late development as to which Mr Sui was entitled to complain and object. 141 The conduct of the Defendants was entirely inconsistent with their obligations as parties under s.56 Civil Procedure Act 2005. Insofar as Mr Sui's application was for costs (on this interlocutory issue) to be ordered on an indemnity basis, there was a proper foundation for this approach given the delinquency or unreasonableness on the part of the Defendants: Rosniak v Government Insurance Office (1997) 41 NSWLR 608 at 616; Leichhardt Municipal Council v Green [2004] NSWCA 341 at [51], [57]. 142 Accordingly, although Mr Jiang and Fulin have succeeded in the proceedings, there is an appropriate foundation for departing from the usual rule that costs follow the event. In my view, the appropriate way forward concerning costs is not to allow Mr Jiang and Fulin all their costs, but rather to order Mr Sui to pay 50% of their costs of the proceedings on the ordinary basis. 143 In my view, an assessment of this type will do justice as between the parties on the costs issue in these proceedings, where there were significant failures to comply with case management orders by Mr Jiang and Fulin which complicated and added to the duration of the proceedings and the number of listings which were required, whilst at the same time, recognising that Mr Sui has not succeeded on the merits in his claims against Mr Jiang and Fulin. 144 For these reasons, I have reached the provisional view that the appropriate discretionary conclusion is that Mr Sui should pay 50% of the costs of the proceedings of Mr Jiang and Fulin calculated on the ordinary basis. 145 In circumstances where this particular costs outcome was not raised with the parties during submissions, I will delay making this costs order for seven days to permit the parties to make short written submissions (not exceeding three pages) on this issue if they wish to do so. I will then determine the costs issue on the papers."

Submissions of the Defendants

1. In written submissions dated 7 May 2021, it was submitted for the Defendants that the Court should order that costs follow the event. Alternatively, in the event that the Court found that the conduct of the Defendants was disentitling conduct, it was submitted that awarding only 50% of their costs was disproportionate to such conduct and that the Defendants ought be awarded 90% of their costs.
2. In support of this submission, it was argued that the engagement of a new legal team for the Defendants ought not be characterised as disentitling conduct warranting a reduction of their costs. It was submitted, as well, that the raising of objections at the hearing on 30 September 2020 ought not create any disentitlement of the Defendants to costs.
3. With respect to the late filing of evidence, it was submitted that the Court recognised the significance of the translation evidence and allowed the Defendants an opportunity to adduce evidence in that respect. It was noted that the Plaintiff was informed by the Court that there was no legal necessity for him to put on additional evidence concerning translation, but he chose to file further translation evidence in any event.
4. It was submitted for the Defendants that, in circumstances where the evidence of Ms Lee formed a crucial part of the case in which the Defendants were wholly successful, the filing of such evidence (albeit late) ought not be seen as unreasonable conduct requiring the exercise of discretion to depart from the usual rule as to costs: Rosniak v Government Insurance Office (1997) 41 NSWLR 608 at 616.
5. The Defendants submitted that the requirement for a second hearing date arose from the original estimate of one day which was too conservative in light of what occurred and the length of submissions made. It was submitted that the issue of the translation of the 2017 written agreement was important to the case as was the concurrent evidence of the two translators given on the second day of the hearing.
6. It was submitted that the late filing by the Defendants of the evidence did not unnecessarily protract the proceedings and that the second day of the hearing was used for submissions as well.

Submissions of the Plaintiff

1. In submissions dated 13 May 2021, Senior Counsel for the Plaintiff supported the foreshadowed costs order that the Plaintiff should pay 50% of the costs of the proceedings of the Defendants calculated on the ordinary basis. The Plaintiff opposed the application for the Defendants to vary the foreshadowed costs order.
2. The Plaintiff emphasised that he had long sought a costs order on an indemnity basis arising from what was said to be the gross default in 2020 by the Defendants in breach of the Court's timetable, followed by what was described as the "eleventh hour opposition of the Plaintiff's claim". It was submitted that this occasioned the Defendants putting on translation evidence which led in turn to the need for the Plaintiff to put on an expert translator's report, as well as the extension of the hearing part-heard into a second day in 2021 at which the translators were cross-examined.
3. The history of the Plaintiff's costs application arising in and after September 2020 was relied upon in support of the Court's ultimate conclusion in the foreshadowed costs order. Rather than dealing with the two different costs questions separately, it was noted that the Plaintiff was content with the practical approach adopted in the Court's judgment of 30 April 2021 which dealt with all costs issues in a proposed single order.
4. Senior Counsel for the Plaintiff submitted that if his client had received an indemnity interlocutory costs order (as sought) with respect to the Plaintiff's costs of preparing expert evidence in reply to that of Ms Lee and in relation to the Plaintiff's costs of the second day of the hearing, and he had to pay the Defendants' costs on the ordinary basis of the hearing up to the conclusion of the first day, then the Plaintiff would likely be in a significantly better position than he will enjoy under the foreshadowed 50% costs order. Viewed in this way, it was submitted that the Court's proposed determination as to costs did not operate to the detriment of the Defendants.
5. It was submitted for the Plaintiff that this was not a case where the Defendants had simply engaged a new legal team prior to hearing on 30 September 2020. Rather, the Defendants had disengaged completely from the Court's case management process, did not appear at directions hearings, filed no evidence and acted as if they were not even going to appear at trial. All of this changed suddenly a couple of days before the hearing.
6. In these circumstances, the Plaintiff submitted that the reduction of the award of costs to the Defendants to 50% of those costs, in compensation for no separate costs order being made in favour of the Plaintiff by reason of the Defendants' misconduct, operated favourably to the Defendants.
7. It was submitted for the Plaintiff that to make the order sought by the Defendants would effectively absolve them from what was described as their very serious misconduct in the proceedings.
8. In the event that the Defendants were unsuccessful in seeking a change to the foreshadowed costs order, the Plaintiff sought an order that the Defendants pay the Plaintiff's costs of the additional steps involved in the making of submissions concerning costs.

Submissions in Reply of the Defendants

1. The Defendants submitted in reply that the approach indicated by the Court at the interlocutory hearing on 22 November 2020 operated in such a way that the foreshadowed costs order should not be made.
2. It was submitted that the making of the foreshadowed costs order would also overlook the Plaintiff's choice to continue with his action after the later evidence of the Defendants was served.
3. It was emphasised that a costs order had already been made on an indemnity basis against the Defendants (on 22 October 2020), which was attributed to this delay.
4. The Defendants submitted that to require the Plaintiff to pay only 50% of their costs would give the Plaintiff an advantage he does not deserve for pursuing to judgment a failed case, and would be unfairly onerous to the Defendants.

Interlocutory Hearings on 22 October 2020 and 12 November 2020

1. Given the submissions of the parties, it is appropriate to step back and consider the course taken by the Court on 22 October 2020 and 12 November 2020, being the further interlocutory hearings required as a result of the defaults of the Defendants prior to 30 September 2020.
2. The interlocutory application by the Defendants for leave to adduce expert translator evidence was heard and determined on 22 October 2020. An ex tempore judgment was delivered at the conclusion of the hearing: Sui v Jiang and Anor (unreported, 22 October 2020).
3. In the course of outlining the "somewhat chequered history" of the proceedings, I noted that the Statement of Claim was filed on 27 September 2019. The Court said (at [4]-[6]): "4. The solicitors for the First Defendant filed a Notice of Ceasing to Act on 26 May 2020. On 3 June 2020, the solicitors acting for the Second Defendant filed a Notice of Ceasing to Act. On 16 July 2020, the Registrar made, amongst other orders, a guillotine order that the Defendants were to serve all evidence by 31 July 2020. As I indicated in the judgment delivered on 30 September 2020, there is evidence of steps taken by the legal representatives for the Plaintiff to notify the Defendants of the orders made by the Registrar, which included fixing the matter for hearing on 30 September 2020 with a one day estimate. 5. On Sunday 27 September 2020, new solicitors informed the solicitors for the Plaintiff that they were to appear for the First Defendant at the hearing. Senior and junior counsel appeared for the First Defendant, and then the Second Defendant as well, at the hearing on 30 September 2020. 6. It is not necessary in this judgment to say much more about what happened at that hearing. The hearing was not completed in one day. The Court was informed on the afternoon of 30 September 2020 that the Defendants wished to make application for leave to file, serve and rely upon an affidavit of a translator with respect to the written agreement in Chinese Mandarin dated 26 May 2017. The Court directed that the Defendants should file a Notice of Motion and affidavits in support of that application and orders were made including a direction that the return of the Notice of Motion take place today."
4. The Court summarised the submissions made on the contested application to adduce expert translator evidence (at [12]-[13]): "12. Submissions have been made by counsel concerning that application. Mr Young SC, for the Plaintiff, submits that leave should not be granted as the Defendants were well in default, had failed to comply with a guillotine order, and that this aspect did not emerge at all until the hearing day on 30 September 2020. As would be apparent by the date of Ms Lee's affidavit of 28 September 2020, it had only recently been obtained by the then legal representatives for the Defendants. Mr Young SC submits that the hearing had been listed for one day. The Plaintiff had put on its material and the Defendants had effectively done nothing after their legal representatives had ceased to act until there was a flurry of activity shortly prior to the hearing day. 13. It is submitted on behalf of the Defendants that the affidavit of Ms Lee ought be allowed, given the significance of the terms of the written agreement to the proceedings."
5. The Court noted (at [14]) that a "central issue in the litigation" concerned the terms of the 2017 written agreement. The Court concluded (at [16]): "16. It seems to me that it would not accord with the interests of justice to shut out the Defendants from relying upon the affidavit of Ms Lee, given its central importance in the proceedings. As I understand it, there is limited controversy concerning the translation. It is confined to a number of words only, but the words in question are capable of having some significance in the determination of the proceedings."
6. As part of the application for leave, the Defendants relied upon an affidavit of the First Defendant affirmed 7 October 2020. The Court said in this respect (at [17]-[19]): "17. I have had regard to the affidavit of the First Defendant affirmed 7 October 2020. There is no satisfactory explanation as to why, having retained solicitors and with them ceasing to act, he did not move more promptly, having regard to the fact he was a litigant before this Court bound by the obligations on litigants in civil proceedings under the Civil Procedure Act 2005. 18. The explanations provided include an apology, which is certainly warranted in the circumstances. There are parts of the affidavit which appear to relate to the association between the Plaintiff and the First Defendant. The First Defendant's affidavit is before the Court solely for the purpose of today's application as a form of background only. It is not evidence in the principal proceedings, nor is it intended to be adduced as evidence in the principal proceedings. 19. Although I accept that there is legitimate criticism of the First Defendant, and for that matter the Second Defendant, with respect to their approach to this litigation, it is not such in my view that it should shut them out from relying on the affidavit of Ms Lee. Accordingly, I will make an order in terms of paragraph 1 of the Notice of Motion, as well as paragraph 2."
7. The Court then turned to the question of costs (at [20]-[27]): "20. A critical and remaining issue concerns the costs consequences of this approach. 21. It is appropriate in my view that the Defendants should pay the Plaintiff's costs of the Notice of Motion. Although some criticism has been directed at the Plaintiff and the state of the Plaintiff's evidence as it stood as at 30 September 2020, the real issue today concerns the failure of the Defendants to comply with orders of the Court prior to 30 September 2020 and the state of affairs on that day, which drove counsel for the Defendants to make an application which has since then proceeded by way of Notice of Motion. The failure of the Defendants to take steps before then has necessitated this Motion. 22. Counsel for the Defendants does not oppose an order that the Defendants pay the costs of the Plaintiff of the Notice of Motion. 23. There is, however, a further aspect. Senior Counsel for the Plaintiff seeks that the Defendants pay the Plaintiff's costs of the Motion on an indemnity basis. That application is opposed. 24. It seems to me that a critical issue on that part of the application is the clear default of the Defendants prior to 30 September 2020. They have obligations under s 56 Civil Procedure Act 2005, as do all civil litigants. There was a clear failure to comply with those obligations. They seek an indulgence to rely belatedly upon the affidavit of Ms Lee. 25. The question of the reasonableness or otherwise of their conduct looms large on the application for indemnity costs. It seems to me that, on one view of it, their heads were put into the sand. Their lawyers ceased to act and when they finally learned that the hearing was on, they sought to take steps but not in a way that complied with orders of the Court. There were in fact significant failures to comply with orders of the Court. 26. In my view, their conduct was sufficiently unreasonable that it is appropriate that the Defendants be ordered to pay the Plaintiff's costs of the Notice of Motion on an indemnity basis. 27. It may be, as counsel for the Defendants indicated, that there may be little difference in monetary terms between costs of the Notice of Motion calculated on an indemnity basis as opposed to the ordinary basis. However, as a matter of principle in the circumstances of this case, and having regard to the degree of protection to which I consider the Plaintiff is entitled, I will make an order that the Defendants pay the Plaintiff's costs of the Motion on an indemnity basis."
8. A further aspect of costs was then considered by the Court (at [28]-[31]): "28. The remaining question also concerns costs. Senior Counsel for the Plaintiff submits that the Defendants should pay, also on an indemnity basis, the Plaintiff's costs incurred by reason of the admission of Ms Lee's affidavit into evidence, including but not limited to the costs of meeting that evidence. Counsel for the Defendants submits that that aspect of the costs application ought be reserved. 29. The way forward from today will involve the Plaintiff having a period of 14 days to determine whether further evidence is to be put on with respect to the translation of the written agreement. It seems to me that, rather than making a costs order in any terms today on that aspect, the appropriate course is to reserve that issue for the moment. 30. The matter will come before me again in three weeks' time on 12 November 2020. It will then be clear as to what has actually happened with respect to additional evidence and, in the light of what has happened (as opposed to the hypothetical possibilities as to what might happen), I will consider any application for costs which the Plaintiff seeks to press with respect to the Plaintiff's costs of responding to Ms Lee's affidavit. 31. When the matter comes before the Court on 12 November 2020, I trust to be in a position to determine what further orders should be made to complete the hearing of the matter, what estimate is appropriate for the balance of the hearing with a date or dates being selected for that purpose. The parties should be in a position to consider that aspect as well when the matter comes before me on the next occasion."
9. The Court then made the following orders (at [32]): "32. Accordingly, I make the following orders: (1) By reference to the Defendants' Notice of Motion dated 7 October 2020, I make orders in accordance with paragraphs 1 and 2 of the Notice of Motion. (2) I note that the folder of statutory records, which is the subject of paragraph 2 (MFI#3), will be tendered as an exhibit at the resumed hearing. (3) I order the Defendants to pay the Plaintiff's costs of the Notice of Motion on an indemnity basis. (4) I reserve the question of costs with respect to the application by the Plaintiff that the Defendants pay the Plaintiff's costs incurred by reason of the admission of Ms Lee's affidavit and will return to that issue at a later time, which I would expect to be 12 November 2020. (5) The Plaintiff is to file and serve any additional evidence arising from the proposed admission by the Court of the affidavit of Teresa Yuk Ling Lee sworn 28 September 2020, with that additional evidence to be filed and served by 4 pm on 5 November 2020. (6) The matter is listed before me for further directions (and the hearing of any further submissions on costs and associated issues) at 9.30 am on 12 November 2020, and that hearing will proceed by audio visual link."
10. A further interlocutory hearing took place on 12 November 2020. At the conclusion of the hearing, the Court gave reasons for the orders made that day (T8-9): "These proceedings are before the Court once again following a hearing on 22 October 2020 where I granted leave to the defendants to rely upon an affidavit of Teresa Yuk Ling Lee dated 28 September 2020 concerning the translation of a written agreement which is central to the proceedings. The plaintiff has now filed an affidavit of Tianyue Sun dated 8 November 2020 which relates as well to the translation of the written agreement which is in Mandarin Chinese. There is some controversy, it would seem, from Ms Sun's affidavit concerning the meaning to be attributed to a particular term. Ms Sun has explained her understanding and the translation of the term in question and her translation is to be distinguished from that adopted by Ms Lee in her affidavit. A remaining factual and evidentiary phase of the hearing concerns this question. Having heard counsel on this issue, the appropriate way forward, in my view, is that Ms Lee should have an opportunity to respond by way of a further affidavit to the affidavit of Ms Sun on the issue raised by Ms Sun concerning the translation of this particular term. Thereafter, on the next occasion which is expected to be the final hearing day, there would be evidence given by both Ms Lee and Ms Sun on the issue of the translation of the written agreement. It is appropriate, in my view, that the two translators give evidence concurrently. Counsel will have a proper opportunity to ask questions and cross examine the translators. But the use of concurrent evidence will, I think, be of the greatest assistance to the Court in resolving the question concerning the words used in the written agreement and their meaning. The Court will then move to closing addresses which will take place on the next hearing date after the evidence is concluded. The Court will be assisted by outlines of submissions which counsel will provide in advance of that hearing. On 22 October 2020 I left open an outstanding issue whereby the plaintiff sought that the defendants be ordered to pay, on an indemnity basis, the costs incurred by the plaintiff in having to meet the late provision of Ms Lee's affidavit. It seems to me that, given the path which lies ahead for the conclusion of the proceedings, that aspect ought be deferred but not forgotten. The approach of the parties involves a practical confinement of the issue and the way in which it is to be determined. However, there does remain a live costs issue to which the Court will return on the next occasion and as part of the resolution of the proceedings generally."
11. Amongst the orders made that day, the Court reserved costs and said (T10): "As indicated in the short reasons which I have just delivered, the costs of today are formally reserved and will be considered when the Court gives further consideration to the plaintiff's application for costs arising from the grant of leave to the defendants to rely upon the affidavit of Ms Lee."

Determination of the Costs Question

1. It is the expectation of the Court that parties will engage in, and remain engaged in, civil litigation in discharge of the obligations placed upon them under s.56(3) Civil Procedure Act 2005. The Court may take into account any failure to comply with the statutory duty contained in s.56(3) in exercising a discretion with respect to costs: s.56(5) Civil Procedure Act 2005; Richards v Cornford (No. 3) [2010] NSWCA 134 at [104].
2. Between early June 2020 and 27 September 2020, the Defendants failed in fundamental respects to comply with their duty under s.56(3) Civil Procedure Act 2005.
3. At the time when the Court was about to hear the Plaintiff's claim on 30 September 2020, the Plaintiff had complied with Court orders and the Defendants had effectively disengaged from the proceedings. To all intents and purposes, it appeared that one day was adequate to accommodate the hearing of what appeared to be an uncontested claim.
4. Very shortly prior to the hearing date, the Defendants engaged in a whirlwind of litigious activity which changed the nature of the hearing which proceeded on 30 September 2020.
5. The Plaintiff had maintained effective compliance with his s.56 obligation, but the Defendants ceased involvement in the litigation for several months prior to the hearing. The Defendants simply failed to comply with Court orders, including a guillotine order.
6. If the Defendants had complied with their duty under s.56(3), then evidence would have been filed and served on their behalf in a timely fashion, with appropriate case management orders being given for a hearing with a likely estimate of one to two days. The final hearing ought to have been in a position to proceed with concurrent evidence being given by the translator witnesses and with counsel being in a position to address to assist the Court at a single hearing.
7. Instead, because of the failures of the Defendants, a complicated and fractured hearing proceeded on 30 September 2020 with extensive evidentiary objections being taken by the Defendants, and with evidence from a translator witness being proffered belatedly by the Defendants in gross breach of Court orders. The failures of the Defendants had a practical and detrimental effect upon the Court's ability to hear the matter in an orderly fashion.
8. Rather than a single final hearing, the Court was required to fix two interlocutory hearing days and then a resumed hearing date on 22 February 2021.
9. As a result of the failures of the Defendants, judicial resources were necessarily directed to these proceedings which ought not have been required. All of this flowed from the last-minute actions by the Defendants to retain a new legal team and to advance a new case in opposition to the Plaintiff's claim.
10. I do not consider that the Defendants are assisted by the suggestion that this was always at least a two-day case. The Plaintiff and the Court proceeded to list the matter upon the basis of the Defendants ceasing active involvement in the litigation. What was expected to take one day ended up taking two full hearing days, together with two further interlocutory hearings being required on 22 October 2020 and 12 November 2020 to further progress the litigation, arising from the failures of the Defendants to take steps in compliance with orders of the Court prior to 30 September 2020.
11. It is the case that the Court made an order on 22 October 2020 that the Defendants pay the Plaintiff's cost of the Notice of Motion on an indemnity basis (see [29], [31] above). It is also the case that the Court reserved the remaining aspect of costs of the interlocutory application on 12 November 2020 (see [32]-[33] above).
12. The intention of the Court on 30 April 2021, in fashioning the foreshadowed costs order, was to bring to a practical completion all costs issues arising in the proceedings. The Defendants have resisted the approach proposed in the foreshadowed costs order.
13. I accept the submissions of the Plaintiff with respect to the foreshadowed costs order. There was a proper basis for a costs determination on an indemnity basis for the interlocutory costs order made in favour of the Plaintiff on 22 October 2020. The reserved costs of 12 November 2020 should also favour the Plaintiff.
14. Costs are in the discretion of the Court: s.98 Civil Procedure Act 2005; Rules 42.1, 42.7 Uniform Civil Procedure Rules 2005.
15. Rather than further dissecting the issue of costs, and absorbing further time and costs in assessing costs for the purpose of making separate interlocutory and final costs orders, I remain of the view that the appropriate and fair outcome is the cost determination foreshadowed in the judgment of 30 April 2021.
16. I am satisfied that the foreshadowed costs order constitutes a just and proportionate outcome with respect to costs in the circumstances of this case.
17. As it is the intention of the Court that the foreshadowed costs order will be the single order dealing with all aspects of costs in this litigation, it is appropriate to make an order revoking the interlocutory costs order made in the Plaintiff's favour on 22 October 2020.
18. In addition, I am satisfied that the Defendants should pay the Plaintiff's costs, calculated on the ordinary basis, concerning the costs issue determined on written submissions furnished after 30 April 2021.
19. Accordingly, I make the following orders: 1. 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; 2. the interlocutory costs order made in favour of the Plaintiff on 22 October 2020 is revoked; 3. the Defendants are to pay the Plaintiff's costs, calculated on the ordinary basis, with respect to the costs issue determined on written submissions furnished after 30 April 2021.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 May 2021