Cambodian Buddhist Society of New South Wales v Meng Eng Thai
[2018] NSWSC 504
•18 December 2017
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Cambodian Buddhist Society of New South Wales and Anor v Meng Eng Thai and Others [2018] NSWSC 504 Hearing dates: On the Papers Decision date: 18 December 2017 Before: Sackar J Decision: Para [11]
Legislation Cited: Civil Procedure Act 2005 (NSW) Category: Costs Parties: Cambodian Buddhist Society of NSW (first plaintiff)
Meng Eang Thai (first defendant)
Long Sakone (second plaintiff)
Tramouch Neariroth Keo (second defendant)
Thearak Boun (third defendant)
Phuyi Yort (fourth defendant)
Buncheon Chuan (fifth defendant)
Vong Ven (sixth defendant)
Ya Hoeung (seventh defendant)
Sokchea Kong (eighth defendant)
Lim Meng Eang (ninth defendant)
Kin Hor Lim (tenth defendant)
Huot Chuoin (eleventh defendant)
Chan Tap Kong (twelfth defendant)Representation: Counsel:
Solicitors:
T Crispin (Plaintiffs)
Ms Okereke-Fisher (Defendants)
Concorde Legal (Plaintiffs)
PW Law (Defendants)
File Number(s): 2017/141644
Judgment
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I gave judgment in this matter on 23 October 2017. I invited submissions on the question of costs. I received detailed written submissions from the parties.
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The thrust of the arguments on both sides of the record at trial involved assertions as to the alleged invalidity of elections conducted by the factions each side represented.
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To a large extent the arguments involved a construction of the current Constitution of the Cambodian Buddhist Society with additional allegations of electoral irregularity.
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In broad terms my findings were that the respective elections conducted in December 2016 and April 2017 were both in effect invalid on numerous grounds and that the December 2016 election in particular was plagued by electoral irregularities for the reasons set out in my judgment: See [125]-[141].
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The Plaintiffs seek costs and submit this is not a matter in which apportionment of the costs would be appropriate. It is submitted the Court in exercising its undoubtedly wide discretion should take into account the context of the litigation and the conduct of the parties. Further it is submitted the Second Plaintiff’s role in the proceedings should be seen as protective, and the proceedings were necessary in all the circumstances.
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The Plaintiffs also note when the context of the proceedings is considered, it is clear the Second Plaintiff has been successful. The directors who sought to remove him from office have been declared not to be validly elected. The Eleventh Defendant, it is submitted, failed in his attempt to usurp the Second Plaintiff’s position as Abbot when the findings were made which were adverse to the Defendants or persons aligned with them. Further, injunctions have been granted requiring the Defendants to surrender the property of the First Plaintiff to the receiver.
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On these grounds, the Plaintiffs submit the Defendants should at least pay the Second Plaintiff’s costs of the proceedings.
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The Defendants reject the assertion by the Second Plaintiff that he was successful in the proceedings. The Defendants submit the Second Plaintiff asserted not just the invalidity of the December election, but also the validity of the April election. On that point it is emphasised I found the 2017 election invalid as well.
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The Defendants submit that based on the pleadings in the Statement of Claim and the Defence the Second Plaintiff was successful in making out two of the five claims and that the Defendants were successful in making out two of the four claims which translates into a 50% win rate for the Defendants and a 40% win rate for the second Plaintiff. In addition the Defendants submit it was reasonable on their part not to have engaged in mediation.
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The Court has a very wide discretion in relation to costs as is plain from section 98 of the Civil Procedure Act2005 (NSW). In general terms costs would usually follow the event. Costs can also if appropriate be awarded on an issue by issue basis. In this case I do consider it important to look at the issues separately.
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The plain reality in my view however is that both sides failed in their respective attempts to assert the validity of their respective faction’s election, or, as stated in the principal judgment “neither party has been successful in their respective claims” (at [173]). I accept the Second Plaintiff did have success in pointing to the invalidity of his removal, and my factual findings concerning the three monks were adverse to the Defendants. However, in my view in the exercise of my discretion the Defendants should therefore pay 50% of the costs of the Second Plaintiff, otherwise each party should pay their own costs.
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Amendments
26 April 2018 - addition to final paragraph "otherwise each party should pay their own costs"
Decision last updated: 26 April 2018
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