Wang v Yu (No 2) [2024] NSWSC 4

Supreme Court New South Wales

Medium Neutral Citation: Wang v Yu (No 2) [2024] NSWSC 4 Hearing dates: 15, 20 December 2023 Date of orders: 20 December 2023, 17 January 2024 Decision date: 17 January 2024 Jurisdiction: Equity Before: Meek J Decision: Costs and ancillary orders made. Catchwords: ORDERS — Orders to give effect to findings in respect of rejection of main claim and qualified success of cross-claim — Specific performance of obligations in a Deed refused as Deed signed as result of duress — Judgment for amounts paid as a result of duress PROCEDURE — Mode of appearance at hearing — audio visual and other mode of appearance — The usual court etiquette, protocols, procedures and restrictions which apply to in-person hearings apply to forms of virtual hearing whether virtual in whole (with all participants joining remotely) or part (with some participants in person and others joining remotely) — Plaintiff sought leave to appear by AVL and initially appeared whilst driving a car — Court expects participants to use their common sense in appearing by AVL — Anyone given permission to appear by AVL should do so in a manner consistent with the appropriate decorum and solemnity of the occasion and not in a manner or environment in which they might be distracted or unable to give their undivided attention properly and safely to the proceedings before the Court — an AVL participant should never participate by AVL in a manner which by dint of their situation or surroundings gives rise to any appreciable risk of placing themselves or others in their vicinity in danger (in this case appearing whilst driving a car with potential risk to herself, other vehicle drivers, passengers or pedestrians) COSTS — Offers of compromise — Whether offer valid — Meaning of must not include an amount for costs in r 20.26(2)(c) UCPR "judgment .. on the plaintiff's claim with no order as to costs" and for the first cross-defendant to pay the costs of the cross-claimant "as agreed or assessed" — Offers held to be valid COSTS — Cross-claimant sought on the cross-claim recovery of sums totalling $210,000 against the first cross-defendant and second cross-defendant jointly — A determination was made in the principal judgment that the cross-claimant was entitled to judgment against only the first cross-defendant for $200,000 and against only the second cross-defendant for $10,000 — Cross-claimant served an offer of compromise in relation to the claim against the first cross-defendant but did not serve any offer in relation to the claim against the second cross-defendant — Each of the cross claimant and second cross-defendant claimed different orders based on different perspectives of whether they had been successful on the cross-claim — Orders made COSTS — Set off – Whether costs in proceedings should be set off Legislation Cited: Civil Procedure Act 2005 (NSW), ss 98(1) Uniform Civil Procedure Rules 2005 (NSW), rr 6.19, 20.26, 42.1, 42.2, 42.13A - 42.15A, 42.20(1), 51.6, 51.10, 51.16 Cases Cited: ACQ v Cook (No 2); Aircair Moree v Cook (No 2) [2008] NSWCA 306 Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 Bullock v London General Omnibus Company [1907] 1 KB 264 Calderbank v Calderbank [1976] Fam 93; [1975] 3 All ER 333 Curtis v Harden Shire Council (No 2) [2015] NSWCA 45 Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 Erasmus v Jackson (Supreme Court (NSW), Wootten J, 15 April 1975, unrep) Estate of Guamani; Guamani v De Cruzado [2023] NSWSC 502 Horn v GA & RG Horn Pty Ltd (No 2) [2022] NSWSC 1747 Jojeni Investments Pty Ltd v Mosman Municipal Council (No 2) [2015] NSWCA 208 Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 Optimisation Australia Pty Ltd (Costs), In the matter of [2018] NSWSC 280 Riva NSW Pty Ltd v Key Nominees Pty Ltd [2023] NSWSC 711 Sanderson v Blyth Theatre Company Limited [1903] 2 KB 533 Taylor v Stav Investments Pty Ltd as trustee for the Stav Investments Family Trust (No 2) [2023] NSWCA 322 Wang v Yu [2023] NSWSC 1182 Whitney v Dream Developments Pty Ltd (2013) 84 NSWLR 311; [2013] NSWCA 188 Zhang v Zhang [2022] NSWSC 924 Texts Cited: Dal Pont, GE, Law of Costs (5th edition, 2021, LexisNexis) Practice Note SC Eq 14 Practice Note SC Gen 7 Practice Note SC Gen 12 Practice Note SC Gen 15 Category: Costs Parties: Lu Wang (Plaintiff / First Cross-Defendant) Jiayi Yu (First Defendant / Cross-Claimant) STYU Pty Ltd atf SY Family Trust (Second Defendant) Auslon Property Group Pty Ltd atf 567 Pacific Unit Trust (Third Defendant) Song Yang (Second Cross-Defendant) Representation: Counsel: P Lonergan (Defendants / First Cross-Claimant) J Mack (Second Cross-Defendant)