Adamson v Liu & Ors (No. 2) - [2009] NSWSC 864

CITATION: Adamson v Liu & Ors (No. 2) [2009] NSWSC 864

HEARING DATE(S): 22 June 2009,
Written Submissions 6/07/09, 13/07/09
Mention-30 July 2009

JUDGMENT DATE :
31 August 2009

JUDGMENT OF: Forster J at 1

CATCHWORDS: An unsuccessful party's financial situation does not bear on the costs orders to be made against him - Court should not assume that assessment of costs will miscarry.

CATEGORY: Consequential orders

CASES CITED: Adamson v Liu & Ors [2009] NSWSC 663

PARTIES: Christopher Michael Adamson
Adeline Marie Liu
Kenneth John Ede

FILE NUMBER(S): SC 5312/04

COUNSEL: Plaintiff- in person
Defendant- R. Horsley

LOWER COURT JURISDICTION: Supreme Court (Associate Judge)

LOWER COURT FILE NUMBER(S): 5312/04

LOWER COURT JUDICIAL OFFICER : Macready AsJ

LOWER COURT DATE OF DECISION: 20/02/09 and 27/02/09

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

FORSTER J

MONDAY, 31 AUGUST 2009

5312/04 CHRISTOPHER MICHAEL ADAMSON v ADELINE MARIE LIU & ANOR

JUDGMENT

1 HIS HONOUR: I delivered my reasons for judgment in this matter on 21 July 2009: see Adamson v Liu & Ors [2009] NSWSC 663.

2 I had before me a Notice of Motion filed by the plaintiff on 24 March 2009. By that Notice of Motion (as subsequently amended pursuant to leave) the plaintiff sought to set aside certain of the orders made by Associate Justice Macready on 20 and 27 February 2009.

3 At the end of my reasons for judgment I said:

“33. The orders I propose to make are as follows:

1. Order 1 of the orders made by Macready AsJ on 20 February 2009 be set aside.

2. Orders 1, 2, 3, 6 and 8 of the orders made by Macready AsJ on 27 February 2009 be set aside.

3. The plaintiff have leave to file a Further Amended Statement of Claim within 21 days in the form of the draft Fourth Further Amended Statement of Claim annexed to the affidavit of the plaintiff affirmed on 5 October 2008, but varied in the following respects:

(a) paragraphs 8 to 13 to be amended so as to conform with the principles expressed in this judgment;

(b) the allegation of disclosure presently appearing in paragraph 11 to be particularised in the document itself;

(c) paragraphs 14 to 26 to be amended so as to conform with the principles expressed in the judgment of Macready AsJ of 20 February 2009;

(d) paragraphs 32 to 35 to be amended:

(i) in the manner set out in paragraph 20 of this judgment; and

(ii) otherwise to conform with the principles expressed in this judgment;

(e) prayers for relief numbered 4 to 7 to be deleted and that the following prayers for relief be substituted in their place:

(i) a declaration that the plaintiff is entitled to set off any judgment which may be entered in these proceedings in his favour against the judgment entered against him and in favour of the second defendant in District Court proceedings 1157/08;

(ii) an order for interest;

(iii) an order…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Adamson v Liu & Ors (No. 2)

Details

AGLC: Adamson v Liu (No. 2) [2009] NSWSC 864
Case: [2009] NSWSC 864
Decision Date: 31 August 2009

CaseChat Overview and Summary

The case of Adamson v Liu & Ors (No. 2) involved a dispute where the primary judge was asked to make a costs order in favour of the plaintiff against the defendants. The defendants appealed against the costs orders made. One of the defendants argued that the court should take into account the financial circumstances of the unsuccessful party when making the costs orders. The appeal focused on the approach to be taken in assessing costs in a situation where the unsuccessful party's financial situation is not known.

The court was required to determine whether the primary judge erred in failing to consider the unsuccessful party's financial situation when making the costs orders. The court also needed to consider whether the assessment of costs would miscarry if the primary judge did not take into account the unsuccessful party's financial situation.

The court held that the unsuccessful party's financial situation does not bear on the costs orders to be made against him. The court noted that it should not assume that assessment of costs will miscarry. The court held that the primary judge did not err in failing to consider the unsuccessful party's financial situation when making the costs orders. The court further held that the unsuccessful party's financial situation is irrelevant to the assessment of costs and that it is not the role of the court to make assumptions about the unsuccessful party's financial situation.

The appeal was dismissed. The costs orders made by the primary judge were upheld. The court held that the unsuccessful party's financial situation is irrelevant to the assessment of costs and that the primary judge did not err in failing to consider it.

Orders