Abdi v Lu (No.2)

[2020] FCCA 3244

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABDI v LU (No.2) [2020] FCCA 3244

Catchwords:
COSTS – Australian consumer law – hire purchase agreement – costs application.

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth), s.79

Federal Circuit Court Rules 2001 (Cth), r.21.02, Sch.1

Federal Court Rules 2011 (Cth), Sch.1

High Court Rules2004 (Cth), r.55.01

Insurance Contracts Act 1984 (Cth)

Cases cited:

Abdi & Anor v Lu [2020] FCCA 1307

Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403

Calderbank v Calderbank [1976] Fam 93; [1975] 3 All ER 333

Donohoe v Britz  (No 2) [1904] HCA 25; (1904) 1 CLR 662

Peel v London & North Western Railway Co [1907] 1 Ch 507

Smith v Buller [1875] UKLawRpEq 26; (1875) LR 19 Eq 473

Wade v J Daniels and Associates Pty Ltd [2020] FCA 1708

Applicant: SULEKHA ABDI

Respondent: MING LU

File Number: MLG 3608 of 2018

Judgment of: Judge Riethmuller

Hearing date: 30 July 2020

Date of Last Submission: 13 August 2020

Delivered at: Townsville

Delivered on: 30 November 2020

REPRESENTATION

Counsel for the Applicant: Mr Hancock

Solicitors for the Applicant: Starnet Legal Pty Ltd

The Respondent appeared in person.

ORDERS

1. The Respondent pay costs to the Applicant in the sum of $16,500.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 3608 of 2018

SULEKHA ABDI

Applicant

And

MING LU

Respondent

REASONS FOR JUDGMENT

Background

1. This is a matter with respect to an application for costs, filed by the applicant on 26 June 2020, pursuant to s 79 of the Federal Circuit Court of Australia Act 1999 (Cth) and r 21.02 of the Federal Circuit Court Rules 2001 (Cth) (‘the Rules’).

2. The applicant in this matter previously sought relief under the Australian Consumer Law with respect to a car hire purchase agreement (‘HPA’). In Abdi & Anor v Lu [2020] FCCA 1307, judgment was given on the substantive issues for the respondent to transfer the registration of the car to the first applicant and to pay the first applicant a sum of $2,429.66. This figure reflected the difference between what the respondent owed the first applicant in those proceedings with respect to insurance claims and the amount owing to the respondent by the first applicant under the contract.

3. In the substantive matter, the monetary value of the first applicant’s claim remained obscure, even in the Amended Statement of Claim; however, a sum potentially in the low-tens-of-thousands of dollars appeared to be the ambit of the Claim.

4. The second applicant appeared to claim around $31,000.00, together with damages for lost wages and loss of a vehicle seized by the sheriff as a result of a judgment following a traffic accident (see amended Statement of Claim). The second applicant was entirely unsuccessful. The respondent claimed $26,039.00 against the first applicant pursuant to the HPA, and denied liability for any insurance claims for traffic accidents.

5. Whilst there were two applicants (wife and husband) in the substantive proceedings, only the first applicant (hereafter referred to as ‘the applicant’)…