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

1. 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”).

2. 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.

3. 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 to their costs of the present application.

72   Because this outcome was not canvassed in Mr An’s various written submissions in response to those parties who expressly sought their costs of the costs application, the Court will give Mr An opportunity to file brief written submissions as to why he should not be ordered to pay the defendants’ costs of the costs application on the ordinary basis (excluding the Company, the Church and the Attorney General). Unless any party applies otherwise, the Court will also then resolve that final question on the papers.”

4. This judgment explains why the Court will order that Mr An should pay the costs of the costs hearing of all parties who asked for their costs. It assumes familiarity, and should be read with, the Principal Judgment and the Costs Judgment. Defined terms in the Principal Judgment have the same meaning in these reasons.

5. The Court has now received written submissions for Mr An and the New Defendants. There was no dispute that Mr An should pay the costs of the first to third and fifth to seventh defendants. However, Mr An submitted that there should otherwise be no order as to costs. The effect of this would be that, as between Mr An and the New Defendants, there would be no order as to costs.

6. The basis of Mr An’s submission was that the New Defendants had contended that he should be liable for the costs of their application for interim relief and for the proceedings as a whole, and that they had failed to obtain that costs order. So understood, each of Mr An and the New Defendants had failed in the principal costs relief which they had sought, such that no order as to costs was the just outcome as between them.

7. The New Defendants relied on their prima facie entitlement to costs for the reasons which I had set out in paragraph [71] of the Costs Judgment (see paragraph [3] above). They submitted that, while they had sought an order that Mr An pay certain of their costs, the alternative position for which they had contended in their submissions was for there be no order as to costs. They succeeded in that alternative claim, which had been resisted by Mr An, and were entitled to their costs accordingly.

8. The Court accepts the New Defendants’ submission that nothing has been raised by Mr An that would displace the New Defendants’ prima facie entitlement to costs set out in paragraph [71] of the Costs Judgment. The difficulty with Mr An’s submission was that he had at all times sought costs from the various parties, including the New Defendants. He failed to obtain any such order. While the New Defendants had primarily sought some of their costs from Mr An, they had succeeded in their alternative submission that there should be no order as to costs. Mr An’s submission now seeks to gloss over his own failure and the New Defendants’ success on their alternative claim by focusing attention on the New Defendants’ failure to obtain the principal costs relief which they had sought.

9. Mr An failed in the costs application. The New Defendants succeeded in their alternative claim in relation to costs. The prima facie entitlement to costs explained in paragraph [71] of the Costs Judgment is the just outcome in this case.

10. The Court orders:

1. The plaintiff is to pay the defendants’ costs of the plaintiff’s costs application on the ordinary basis (excluding the costs of the 8th, 9th and 17th defendants, as to which the Court makes no order as to costs).

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Decision last updated: 05 May 2020