Carvajal v Lamba (No. 2) - [2019] NSWDC 333

District Court

New South Wales

Amendment notes

Medium Neutral Citation: Carvajal v Lamba (No. 2) [2019] NSWDC 333
Hearing dates: 11 July 2019
Date of orders: 19 July 2019
Decision date: 19 July 2019
Jurisdiction: Civil
Before: Russell SC DCJ
Decision:
(1) The costs ordered on 28 June 2019 to be paid by the defendant to the plaintiff shall include the costs of this determination on costs.

Catchwords: COSTS – whether commencement and continuation of proceedings in the District Court, rather than the Local Court, was warranted – Rule 42.35 UCPR – principles applicable
COSTS - proportionality of costs – s 98 Civii Procedure Act 2005 - principles applicable
Legislation Cited: Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005
Cases Cited: Colak v Ghalloub (No. 2) [2017] NSWDC 351
Colquhoun v District Court (NSW) (No. 2) [2015] NSWCA 54
Lovick & Son Developments Pty Limited v Doppstadt Australia Pty Limited (No. 3) [2013] NSWSC 135
Singapore Airlines Cargo Pte Ltd v Principle International Pty Ltd (No. 2) [2017] NSWCA 340
Tim Barr Pty Limited v Narui Gold Coast Pty Limited [2011] NSWSC 11
Category: Costs
Parties: Maria Alejandra Carvajal (Plaintiff)
Tanu Lamba (Defendant)
Representation:
Counsel:
K Balendra (Plaintiff)
A Renshaw (Defendant)
Solicitors:
Harrow Legal (Plaintiff)
Hall & Wilcox (Defendant)

File Number(s): 2018/195978

Judgment

Introduction

The plaintiff sought damages for injuries sustained in a motor vehicle accident. I gave judgment for the plaintiff on 28 June 2019 in the amount of $7,013.36 – [2019] NSWDC 284. I ordered the defendant to pay the plaintiff’s costs and I listed the matter for argument as to costs on 11 July 2019. I directed the parties to file a document setting out any orders sought on costs and the authorities relied upon for those orders.
The plaintiff was content with the original costs order. The defendant filed a document (MFI 12) setting out the following orders sought:

An order that the plaintiff pay the defendant’s costs of the proceedings pursuant to r 42.35 of the UCPR.

In the alternative, that costs orders are made in accordance with s 60 of the Civil Procedure Act 2005 (NSW).

Further, in the alternative, that each party is ordered to pay their own costs of the proceedings.

Rule 42.35

Rule 42.35 of the Uniform Civil Procedure Rules 2005 provides as follows:

“(1)   This rule applies if:
(a)   in proceedings in the District Court, a plaintiff has obtained a judgment against the defendant or, if more than one defendant, against all the defendants, in an amount less that $40,000, and
(b)   the plaintiff would, apart from this rule, be entitled to an order for costs against the defendant or defendants.

(2) An order for costs may be made, but will not ordinarily be made, unless the District Court is satisfied the commencement and continuation of the proceedings in the District Court, rather than the Local Court, was warranted.”

It has been held that the commencement and continuation of proceedings in the District Court was warranted…

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 Carvajal v Lamba (No. 2)

Details

AGLC: Carvajal v Lamba (No. 2) [2019] NSWDC 333
Case: [2019] NSWDC 333
Decision Date: 19 July 2019

CaseChat Overview and Summary

The case of Carvajal v Lamba (No. 2) involved a dispute between the plaintiff, Carvajal, and the defendant, Lamba, which was heard in the District Court of New South Wales. The primary issue in this case was whether the proceedings should have been initiated and continued in the District Court, rather than the Local Court, and the associated costs implications of that decision. This matter was a follow-up to a previous case between the same parties, and the court was required to determine the costs incurred due to the litigation process, particularly under the Uniform Civil Procedure Rules and the Civil Procedure Act 2005.

The court had to examine whether the commencement and continuation of the proceedings in the District Court were justified, taking into account the nature and complexity of the case. The court also needed to consider the principles outlined in Rule 42.35 of the Uniform Civil Procedure Rules, which deals with the allocation of costs. Furthermore, the court was required to assess the proportionality of the costs in light of the provisions of section 98 of the Civil Procedure Act 2005, which mandates that the costs of proceedings should be proportionate to the nature and value of the subject matter of the proceeding.

In its decision, the court found that the District Court was the appropriate forum for the proceedings, given the complexity and value of the dispute. The court held that the costs ordered on 28 June 2019, which were to be paid by the defendant to the plaintiff, should include the costs of this determination on costs. The court emphasised the importance of ensuring that the costs of litigation are proportionate to the nature and value of the proceedings, and that the decision to proceed in the District Court was justified. The court's decision highlights the need for parties to carefully consider the appropriate forum for their litigation and the potential cost implications of that decision.

Orders

Orders of the court

(1) The costs ordered on 28 June 2019 to be paid by the defendant to the plaintiff shall include the costs of this determination on costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Carvajal v Lamba (No. 2) [2019] NSWDC 333
Hearing dates:	11 July 2019
Date of orders:	19 July 2019
Decision date:	19 July 2019
Jurisdiction:	Civil
Before:	Russell SC DCJ
Decision:	(1) The costs ordered on 28 June 2019 to be paid by the defendant to the plaintiff shall include the costs of this determination on costs.
Catchwords:	COSTS – whether commencement and continuation of proceedings in the District Court, rather than the Local Court, was warranted – Rule 42.35 UCPR – principles applicable COSTS - proportionality of costs – s 98 Civii Procedure Act 2005 - principles applicable
Legislation Cited:	Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005
Cases Cited:	Colak v Ghalloub (No. 2) [2017] NSWDC 351 Colquhoun v District Court (NSW) (No. 2) [2015] NSWCA 54 Lovick & Son Developments Pty Limited v Doppstadt Australia Pty Limited (No. 3) [2013] NSWSC 135 Singapore Airlines Cargo Pte Ltd v Principle International Pty Ltd (No. 2) [2017] NSWCA 340 Tim Barr Pty Limited v Narui Gold Coast Pty Limited [2011] NSWSC 11
Category:	Costs
Parties:	Maria Alejandra Carvajal (Plaintiff) Tanu Lamba (Defendant)
Representation:	Counsel: K Balendra (Plaintiff) A Renshaw (Defendant) Solicitors: Harrow Legal (Plaintiff) Hall & Wilcox (Defendant)
File Number(s):	2018/195978