NSW Crime Commission v Chen (No 2)

In July 2017 I gave judgment in NSW Crime Commission v Chen [2017] NSWSC 943, concluding that the further restraining orders which the Commission sought under s 10A of the Criminal Assets Recovery Act 1990 (NSW) had to be made and refusing the application made by Ms Chen under s 10C, in respect of the orders earlier made by Button J under s 10A in NSW Crime Commission v Chen (Supreme Court (NSW), Button J, 4 March 2014, unrep).

The usual order as to costs under the Uniform Civil Procedure Rules 2005 (NSW) is that costs follow the event, that being an order that Ms Chen bear the Commission’s costs of the two motions.

Ms Chen seeks a departure from the usual order, submitting that some other order should be made under r 42.1, namely, that while conceding that she should bear the costs of the Commission’s November 2016 motion, on which it succeeded, the order as to the costs of her 4 October 2016 motion should be that each party should bear their own costs.

There is no question as to the Court’s discretion to make such an order under s 98 of the Civil Procedure Act 2005 (NSW), but the Commission opposed such a departure from the usual order.

Ms Chen’s case was that while the proper construction of s 10C of the Criminal Assets Recovery Act had not been addressed in the parties’ written submissions, it arose at the hearing and was dealt with at [22] - [86] of the July 2017 judgment. That comprised close to one third of the reasons given for the orders made, after that had become a focal point of the hearing, following questions which I had raised with the parties.

Further, in relation to Ms Chen’s application, there was an issue as to whether the affidavit sworn by Mr Spark in support of the original s 10A application, dealt with by Button J, had to be tendered. I concluded at [90] - [94]:

It was submitted that these conclusions informed, in part, the decision not to set aside the Commission’s 2014 application for restraint. Those circumstances were also relied on to support Ms Chen’s submission that the costs of her motion should be borne by each party. No authority was referred to, to support these submissions.

The Commission’s case was that Ms Chen had brought her s 10C application for the purpose of freeing her property from restraint. She was entirely unsuccessful, both in respect of her own motion and that which the Commission had advanced. The construction questions which I raised did not occupy much time during the hearing and none beforehand, because they had not earlier been addressed by the parties. In the result, there should be no departure from the usual rule as to costs.

I am satisfied that Ms Chen’s arguments cannot succeed.

That the cases respectively advanced by the parties raised questions as to the proper operation of the statutory scheme, which they had not addressed in their written submissions, but which were addressed at the hearing in response to questions which I asked and which thus had to be dealt with in the judgment by which the issues lying between the parties were resolved, is not a proper basis for a departure from the usual costs order under the Rules.

To the contrary, the approach encompassed by the usual costs order is one which is compensatory, rather than punitive, reflecting as it does success on the subject matter over which issue has been joined by the parties and vindication for the success which one of them has been achieved: Latoudis v Casey (1990) 170 CLR 534 at 566 – 567; [1990] HCA 59.

In this case Ms Chen failed to obtain the orders which she sought by her October 2016 motion, in respect of the s 10A order which Button J made in 2014. She also failed to resist the further s 10A order which the Commission sought in its November 2016 motion. That in arriving at that result, it was necessary to give consideration to the proper construction of the statutory scheme, is not a proper basis for departure from the usual order, in respect of Ms Chen’s motion.

Accordingly, I now order that: