Supreme Court New South Wales Medium Neutral Citation: Sui v Jiang (No 2) [2024] NSWSC 1174 Hearing dates: On the papers; written submissions 2 September 2024 Decision date: 17 September 2024 Jurisdiction: Equity - Commercial List Before: Stevenson J Decision: Plaintiff to pay 50% of defendant's costs of the proceedings Catchwords: COSTS – where plaintiff failed in his most significant claim advanced at trial, but succeeded on second claim – where defendant did not press some of its defences at last moment – where plaintiff incurred costs relating to defences not pressed – what costs orders should be made to reflect those matters COSTS – party/party – exceptions to general rule that costs follow the event – offers of compromise – where defendant made offer of compromise the day before hearing – where offer was expressed, in effect, to be inclusive of costs Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45 Sui v Jiang [2024] NSWSC 1013 Category: Costs Parties: Guangyi Sui (Plaintiff) Zhaoqing Jiang (Defendant) Representation: Counsel: M W Young SC (Plaintiff) S A Lawrance SC / D F Elliott (Defendant) Solicitors: Dixon Holmes du Pont Lawyers (Plaintiff) Sunfield Chambers Solicitors & Associates Pty Ltd (Defendant) File Number(s): 2023/167408 JUDGMENT 1. I delivered judgment in this matter on 14 August 2024. [1] I shall use the same abbreviations here. 2. Mr Sui failed in relation to his claim for $1,499,000 by reason of his alleged exercise of the option under cl 4 of the Agreement. Mr Sui succeeded in relation to his claim for the $150,000 referred to in that clause. 3. Initially, Mr Jiang offered a number of defences to Mr Sui's option claim. 4. One defence was that, in the events that had happened, Mr Sui did not exercise the option. I accepted that defence. 5. Mr Jiang also, initially, sought to defend Mr Sui's claim under the option by alleging that the sale price achieved by Mr Sui for the relevant shares was less than their market value, and that the sale of shares was not a "sale" as contemplated by the Agreement because it was not a genuine sale made at arm's length. 6. Save for the question of construction that I dealt with at [73] to [79] of the judgment, those defences were not pressed. 7. A very large part of the evidence adduced by the parties was directed to the defences which were not pressed. Further, a contested application on 24 May 2024 before Nixon J was brought by Mr Jiang to raise the defences which were not pressed. 8. The only defence that Mr Jiang offered to Mr Sui's claim for the $150,000 was an Anshun defence. [2] I did not accept that defence. That issue took little time at the hearing. 9. Shortly before 5pm on 6 August 2024, the day before the hearing, Mr Jiang made an offer to settle the whole of the proceedings for $150,000 plus interest with no order as to costs. 10. Because the offer was, in effect, inclusive of costs, it was not an offer of the kind referred to in Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), r 20.26. [3] 11. The offer was expressed to be open until 10am the following day, when the hearing commenced before me. 12. Mr Sui did not accept the offer. I do not think it was unreasonable of him not to do so. The offer was made at the very last moment and invited him to capitulate on his major claim. 13. As Mr Sui has failed in relation to the claim which was, in monetary terms, by far the most significant of his two claims, he must pay some of Mr Jiang's costs. 14. Some discount is warranted by reason of the fact that Mr Sui succeeded in relation to his claim for $150,000, although, as I have said, that claim did not occupy much hearing time. 15. There should be a further discount because of the defences to Mr Sui's option claim which were not pressed and by reason of the fact that a large amount of the material adduced by both parties, and which occupied most of the court book, was directed to those issues. 16. The appropriate order is that Mr Sui pay 50% of Mr Jiang's costs of the proceedings. 17. There was also an issue as to whether Mr Sui should have interest on the $150,000 beyond the date of the 6 August 2024 offer. 18. It is true that that offer was for the full amount of the $150,000 that Mr Sui has recovered. But it was an offer to compromise the whole proceedings and, as I have said, invited Mr Sui to capitulate in relation to his option claim. 19. I see no reason why, in those circumstances, interest should not run until payment. 20. The parties should now bring in short minutes to reflect these reasons, and to finalise the proceedings. ********** Endnotes 1. Sui v Jiang [2024] NSWSC 1013. 2. Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45. 3. See UCPR r 20.26(2)(c). 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: 17 September 2024