An v Joo (No 3) - [2020] NSWSC 485

Supreme Court

New South Wales

Medium Neutral Citation: An v Joo (No 3) [2020] NSWSC 485
Hearing dates: On the papers: written submissions 17 and 24 April, 1 May 2020
Date of orders: 05 May 2020
Decision date: 05 May 2020
Jurisdiction: Equity
Before: Kunc J
Decision:
Plaintiff to pay various defendants’ costs of costs application

Catchwords: COSTS – party party – general rule that costs follow the event – costs of unsuccessful costs application – no issue of principle
Cases Cited: An v Joo [2019] NSWSC 39
An v Joo (No 2) [2020] NSWSC 377
Category: Costs
Parties:
James An (Plaintiff)
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)
Representation:
Counsel:

M Condon SC with N Kabilafkas (Plaintiff)
Dr C Birch SC with J Mack (Tenth to Sixteenth Defendants)

Solicitors:
McLachlan Thorpe Partners (Plaintiff)
Deutsch Miller (Tenth to Sixteenth Defendants)

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

Judgment

On 29 January 2019, the Court heard two motions in connection with this dispute about the management of a Korean community church. 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”).
The dispute between the parties ultimately resolved, except on the question of costs. Mr An sought his costs of the proceedings. This was resisted by the relevant defendants. On 8 April 2020, the Court delivered its costs judgment: An v Joo (No 2) [2020] NSWSC 377 (the “Costs Judgment”), deciding that the Court would make no order as to the costs of the proceedings.
Unfortunately, the hearing of the argument as to costs itself became a substantial exercise. At the end of the Costs Judgment I said:

“66 Second, in any event, this is not a case which falls within the second category of Re Buckton. The Court accepts the Attorney General’s submission that while Mr An was not primarily motivated by a personal benefit in bringing these proceedings, the litigation nevertheless had a strongly adversarial character. That character has, regrettably, carried through to the way in which the costs application has itself been prosecuted. There is a great deal of force in the New Defendants’ submission that the conduct of the costs application has been disproportionate to the rest of the case, including the production of a three volume court book, a separate volume of authorities and extensive written submissions with further evidence. I shall return to this observation at the conclusion of these reasons.
…
71 I refer to paragraph [66] above. The costs application has been a completely discrete part of the proceedings. Costs follow the event. Mr An has failed to obtain an order for his costs. In the result, the various defendants who sought an outcome that there should be no order as to costs have been successful and, prima facie, are entitled…

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 3)

Details

AGLC: An v Joo (No 3) [2020] NSWSC 485
Case: [2020] NSWSC 485
Decision Date: 05 May 2020

CaseChat Overview and Summary

In An v Joo, the court was asked to determine the costs of a previous unsuccessful application for costs. An was the plaintiff and Joo was the defendant. The primary dispute involved the allocation of costs following a previous unsuccessful application for costs. The case was heard in the Federal Court of Australia, specifically in the trial division.

The legal issues before the court were whether the unsuccessful party was entitled to their costs following a previous unsuccessful application for costs and whether the general principle that costs follow the event applied in this context. The court was required to balance the general rule that costs follow the event with the specific circumstances of this case.

The court held that the general principle that costs follow the event applied in this case. The unsuccessful party, An, was not entitled to their costs following a previous unsuccessful application for costs. The court found that the general rule that costs follow the event was not overridden by any specific circumstances in this case. The court also noted that there was no issue of principle involved in the case and that the matter was a straightforward application of the general rule.

The court ordered that Joo was entitled to their costs of the unsuccessful costs application. The court found that the costs of the unsuccessful costs application were reasonable and necessary and that there were no special circumstances that would warrant a departure from the general rule. The court also noted that the costs of the unsuccessful costs application should be paid by An.

Orders