Yao v State of New South Wales; Chen v State of New South Wales

1. [1]

   HIS HONOUR: On 12 December 2025, I dismissed the plaintiffs’ motions in these matters seeking summary judgment: see Yao v State of New South Wales; Chen v State of New South Wales [2025] NSWSC 1485. I ordered the plaintiffs to pay costs.

2. [2]

   The State of New South Wales now seeks a gross sum costs order pursuant to s 98(4)(c) of the Civil Procedure Act 2005. In support of that application, the State relies upon the affidavits of Fatima Shafaie affirmed on 9 December 2025 (filed in 2025/38750 and 2025/63010). Part of the affidavit read in Ms Yao’s proceeding is as follows:

3. [3]

   The costs incurred in relation to Ms Yao’s motion are set out in the following table:

4. [4]

   The costs incurred in relation to Mr Chen’s motion are set out in the following table:

State’s submissions

1. [5]

   In terms of quantum, the State seeks that a gross sum costs order be made pursuant to s 98(4)(c) of the Civil Procedure Act. This Court has an unfettered discretion to make such an order where it can fairly determine a sum: Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 at [21]. The State submitted that it would be appropriate to do so in the present case because of:

2. [6]

   The State submitted that having regard to the quantum in issue without undertaking a line-by-line assessment, a broad-brush approach is to be preferred and that an appropriate discount of the costs incurred by the State is 10-20% if assessed on an indemnity basis or 25-35% if assessed on the ordinary basis.

Plaintiffs’ submissions

1. [7]

   Despite the fact that I directed the plaintiffs to file submissions dealing with the application for a gross sum costs order, no such submissions were received. The plaintiffs did provide the Court with 20 pages of submissions, filed on 19 March 2026, but these submissions are wholly misconceived and fail entirely to deal with the present application. It is apparent that the plaintiffs had and have no proper understanding of the present application and are in severe need of legal advice for the purposes of these proceedings in general and this application in particular.

Disposition

1. [8]

   The fact that the plaintiffs would appear not even to comprehend the nature of the present application or the type of response to it that they were invited by me to provide in my view strongly supports the State’s expressed concern that the costs assessment process in this case would be wholly inimical to the interests of justice. I anticipate that it would have the potential to achieve a life of its own, be time consuming and expensive, and in all likelihood fail to produce any benefit to the plaintiffs in terms of the quantum of the costs that they have been ordered to pay.

2. [9]

   Having regard to what I have said with respect to the plaintiffs’ limited understanding of the proceedings, it is unsurprising that Ms Shafaie was not cross-examined. In the circumstances, and based on my experience, I consider that the costs explained by her in her affidavit are reasonable. I will therefore make a gross sum order for the costs of the motion on the ordinary basis in the amount of $4,500.00 in each case.