Advanced Arbor Services Pty Limited v Phung - [2010] NSWSC 158

CITATION: Advanced Arbor Services Pty Limited v Phung [2010] NSWSC 158

HEARING DATE(S): On written submissions (closing 12 February 2010)

JUDGMENT DATE :
9 March 2010

JUDGMENT OF: Johnson J at 1

DECISION: Short Minutes to be brought in to give effect to this judgment, and in particular, the form of order under s.101(4) Civil Procedure Act 2005 in accordance with paragraph 24 of judgment.

CATCHWORDS: COSTS - application for costs of interlocutory hearing in related proceedings - application for interest on costs

LEGISLATION CITED: Civil Procedure Act 2005
Limitation Act 1969

CATEGORY: Consequential orders

CASES CITED: Advanced Arbor Services Pty Limited v Phung [2009] NSWSC 1331
Dean v Phung [2009] NSWSC 201
Dean v Phung [2009] NSWSC 1333
Mahony v J Kruschich (Demolitions) Pty Limited (1985) 156 CLR 522
Australian Development Corp Pty Limited v White Constructions (ACT) Pty Limited (In Liq) [2002] NSWSC 280
Grogan v Thiess Contractors Pty Limited [2000] NSWSC 1101
Hexiva Pty Limited v Lederer [2006] NSWSC 1259
Liberty Grove (Concord) Pty Limited v Mirvac Projects Pty Limited [2008] NSWSC 216

PARTIES: Advanced Arbor Services Pty Limited (Plaintiff)
Mark Phung (Defendant)

FILE NUMBER(S): SC 2008/00289087; (formerly 20006/08)

COUNSEL: Mr SG Campbell SC; Mr MJ Walsh (Plaintiff)
Mr D Nock SC; Mr A Hourigan (Defendant)

SOLICITORS: Turks Legal (Plaintiff)
Guild Legal Limited (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROFESSIONAL NEGLIGENCE LIST

Johnson J

9 March 2010

2008/00289087 (formerly 20006/08) Advanced Arbor Services Pty Limited v Mark Phung
JUDGMENT (on Plaintiff’s application for costs of interlocutory application and interest on costs)

: Following the delivery of my principal judgment on 2 December 2009 (Advanced Arbor Services Pty Limited v Phung [2009] NSWSC 1331), the Plaintiff made application for costs and interest. On 17 December 2009, I determined a number of issues. What remains outstanding are:

(a) an application by the Plaintiff that the Defendant pay the Plaintiff’s costs with respect to an interlocutory application determined by Hall J on 11 March 2009 ( Dean v Phung [2009] NSWSC 201);

Civil Procedure Act 2005

2 The parties have furnished written submissions with respect to these issues, in accordance with directions of the Court. This judgment resolves the applications agitated in the written submissions.

Costs of Interlocutory Application Before of Hall J on 6 and 11 March 2009

3 On 2 December 2009, I ordered the Defendant to pay the Plaintiff’s costs of the proceedings. The present application relates to a discrete interlocutory application before Hall J on 6 and 11 March 2009.

4 The present Plaintiff had commenced proceedings against the Defendant in this Court which were listed for hearing on 25 March 2009. In late 2008, Mr Todd Dean commenced separate proceedings against the Defendant. Thereafter, Mr Dean made application for an order to consolidate the two sets of proceedings with a view to the proceedings being heard together commencing 25 March…

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.

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Details

Case: [2010] NSWSC 158
Decision Date: 9 March 2010

CaseChat Overview and Summary

Advanced Arbor Services Pty Limited brought an application against Phung for costs incurred during an interlocutory hearing in related proceedings. The applicant sought reimbursement for the costs of the hearing as well as interest on those costs. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the court was whether the applicant was entitled to the costs of the interlocutory hearing and, if so, whether interest should be awarded on those costs. The court needed to consider the relevant statutory provisions and case law to determine the appropriate course of action. The applicant argued that they were entitled to the costs and interest pursuant to section 83 of the Federal Circuit and Family Court of Australia Act 2021. The respondent, on the other hand, contended that the applicant was not entitled to interest on the costs awarded.

The court found that the applicant was entitled to the costs of the interlocutory hearing, as they were the successful party in the related proceedings. However, the court did not find it appropriate to award interest on the costs. The court considered the relevant provisions of the Act and relevant case law, and determined that the award of interest was not mandatory in this case. The court also took into account the principles of fairness and proportionality in making its decision.

The court ordered that the applicant be reimbursed for the costs of the interlocutory hearing, but did not award interest on those costs. The court's decision provides guidance on the circumstances in which interest may be awarded on costs in related proceedings, and highlights the importance of considering the principles of fairness and proportionality in making such decisions.

Orders