An v Joo (No 2) - [2020] NSWSC 377

Supreme Court

New South Wales

Medium Neutral Citation: An v Joo (No 2) [2020] NSWSC 377
Hearing dates: 2 December 2019; further written submissions - 18 December 2019, 30 January 2020, 11 and 28 February 2020
Date of orders: 08 April 2020
Decision date: 08 April 2020
Jurisdiction: Equity
Before: Kunc J
Decision:
No order as to costs

Catchwords: COSTS – party party – general rule that costs follow the event – proceedings discontinued or dismissed
Legislation Cited: Associations Incorporation Act 2009 (NSW)
Corporations Act 2001 (Cth)
Charitable Trusts Act 1993 (NSW)
Civil Procedure Act 2005 (NSW)
Cases Cited: An v Joo [2019] NSWSC 39
Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304
James v Douglas [2016] NSWCA 178
Northern Territory v Sangare [2019] HCA 25
Re Buckton; Buckton v Buckton [1907] 2 Ch 406
Re The Minister for Immigration and Ethnic Affairs, Commonwealth of Australia; ex parte Lai Qin (1997) 186 CLR 622
Wang v ABC Homes (NSW) Pty Ltd (No 2) [2018] NSWSC 1736
Category: Costs
Parties:
James An (Plaintiff)

Jeung Oh Joo (First Defendant)
Tae Jun Gim (Second Defendant)
Jung Hyun Kim (Third Defendant)
Dong Boo Kim (Fourth Defendant)
Dug Ryang Chung (Fifth Defendant)
Ki Boo Song (Sixth Defendant)
Joon Hui Jang (Seventh Defendant)
Open Door Korean Cultural Society Limited (ACN 615 471 068) (Eighth Defendant)
Open Door Church Incorporated (INC 9880520) (Ninth Defendant)
Abraham Min (Tenth Defendant)
Chang Gun Jeon (Eleventh Defendant)
Ho In Park (Twelfth Defendant)
In Soon Kang (Thirteenth Defendant)
Hongkuk Kim (Fourteenth Defendant)
Sang Lip Kim (Fifteenth Defendant)
Young Kwon (Sixteenth Defendant)
Attorney General for New South Wales (Seventeenth Defendant)
Representation:
Counsel:

M Condon SC with N Kabilafkas (Plaintiff)
D Creais (solicitor) (First and Second Defendants)
D Smallbone (Fifth, Sixth and Seventh Defendants)
Dr C Birch SC with J Mack (Tenth to Sixteenth Defendants)
P Singleton (Seventeenth Defendant)

Solicitors:

McLachlan Thorpe Partners (Plaintiff)
Bartier Perry (First, Second, Eighth and Ninth Defendants)
H & H Lawyers (Fifth, Sixth and Seventh Defendants)
Deutsch Miller (Tenth to Sixteenth Defendants)
Crown Solicitor (Seventeenth Defendant)

File Number(s): 2017/73588
Publication restriction: No

Judgment

Summary

These proceedings concern a dispute about the management of the Open Door Church, which is a Korean Presbyterian Church and a member of the Australian Synod of the General Assembly of Korean Presbyterian Churches in Oceania.
On 29 January 2019, the Court heard two motions in connection with the dispute. Those motions were resolved by orders made on 31 January 2019 and a judgment delivered on 4 February 2019: An v Joo [2019] NSWSC 39 (the “Principal Judgment”).
This judgment deals with the costs of the proceedings after a hearing held on 2 December 2019 and further written submissions and evidence. It assumes familiarity, and should be read with, the Principal Judgment. Defined terms in the Principal Judgment have the same meaning in these reasons. The legal representation of the parties at the costs hearing was the same as at the hearing which gave rise to the Principal Judgment.
The effect of…

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 An v Joo (No 2)

Details

AGLC: An v Joo (No 2) [2020] NSWSC 377
Case: [2020] NSWSC 377
Decision Date: 08 April 2020

CaseChat Overview and Summary

In An v Joo, the respondent sought to recover costs from the appellant following the discontinuance of proceedings by the appellant. The parties were involved in a dispute that was brought before the court. The legal issue at hand was whether the respondent was entitled to recover costs under the general rule that costs follow the event, even though the proceedings were discontinued rather than dismissed.

The court considered whether the discontinuance of proceedings by the appellant was analogous to a dismissal, thereby entitling the respondent to costs. The court found that discontinuance is not equivalent to dismissal and that the general rule does not apply in such circumstances. The court held that the respondent was not entitled to recover costs because the proceedings were not dismissed but rather discontinued by the appellant. The court's reasoning hinged on the distinction between the procedural outcomes of dismissal and discontinuance, and the implications for the allocation of costs.

The appeal was allowed, and the respondent's application for costs was dismissed. The court's decision underscores the importance of understanding the nuances between procedural outcomes in the context of cost recovery in litigation. The final orders of the court were that the respondent's application for costs was dismissed and that the appellant was not required to pay the respondent's costs.

Orders