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Corbett v Nguyen (No 2)

Corbett v Nguyen (No 2)

Case [2012] NSWSC 673 22 June 2012

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Supreme Court

New South Wales

Medium Neutral Citation: Corbett v Nguyen (No 2) [2012] NSWSC 673
Hearing dates: 12 June 2012
Decision date: 22 June 2012
Jurisdiction: Equity Division
Before: Windeyer AJ
Decision:
Orders:
(1) Subject to order (6), the plaintiff pay 90% of the defendants' costs of the proceedings between plaintiff and defendants including the cross claim between them those costs to include all costs thrown away or wasted as a result of amendments to the statements of claim.
(2) The defendants pay the costs of the second cross defendant of the cross claim between them.
(3) The plaintiff pay the defendants' costs of the cross claim against the second cross defendant and indemnify the defendants against the costs payable pursuant to order (2).
(4) The proceedings on the judgment in favour of the plaintiff be stayed pending assessment of the costs of the defendants payable by the plaintiff or until further order and that upon assessment such costs be set off against the judgment sum.
(5) That the costs of the defendants payable by the plaintiff be further set off against the costs payable by the defendants to the plaintiff pursuant to orders of White J of 28 November 2008.
(6) No order as to the costs of the hearing on 12 June 2012.
(7) Liberty to apply in respect of order (4).
(8) The exhibits may be returned.

Catchwords:
COSTS- circumstances where cross claim dismissed because plaintiff's claim failed.
SET OFF- costs against costs and costs against judgment.
Legislation Cited: Civil Procedure Act 2005, ss 98(1), 101(4)
Uniform Civil Procedure Rules 2005, Parts 42.1, 42.20(1)
Cases Cited: Fennell v Supervision & Engineering Services Holdings Pty Ltd and Santos Ltd [1988] SASR 6
Furber v Stacey [2005] NSWCA 242
GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 688
Gold Coast Bakeries (Qld) Pty Ltd v Heat & Control Pty Ltd [1992] 1 Qd R 162
Goldsbrough Mort & Co Ltd v Quinn (1910) 10 CLR 674
Hughes Bros Pty Ltd v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney (Foster AJ, 25.10.1999, unreported) BC9907002
Jones v Bradley (No 2) [2003] NSWCA 258
Lahoud v Lahoud [2006] NSWSC 126
Lombard Insurance Co (Australia) Ltd v Pastro (1994) 175 LSJS 448
McCourt v Cranston [2009] WASC 56
Smec Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 120
Thrustout d.Barnes v Crafter (1772) 2 Wm Bl 826; 96 ER 487
Wentworth v Wentworth (Young J, 12.12.1994, unreported) BC403409
Wentworth v Wentworth (CA, 21.2.1996, unreported) BC9600213
Category: Costs
Parties: James Edmund Corbett (Plaintiff)
Hau Nhon Nguyen (First Defendant)
Hoa Nhon Nguyen (Second Defendant)
Ai Nhon Nguyen (Third Defendant)
Abaco Machines (Australasia) Pty Ltd (Trustee of the Tuyet Superannuation Fund) (Fourth Defendant)
David Duc Van Nguyen (Second Cross Defendant)
Representation:
Counsel:

H Altan (Plaintiff)
J C Thompson (Defendants)
N J Owens (Second Cross Defendant)
Solicitors:
Atkinson Vinden Lawyers (Plaintiff)
Gerard Gooden Solicitor (Defendants)
Yeldham Price O'Brien Lusk (Second Cross Defendant)

File Number(s):

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 Corbett v Nguyen (No 2)

Details

AGLC: Corbett v Nguyen (No 2) [2012] NSWSC 673
Case: [2012] NSWSC 673
Decision Date: 22 June 2012

CaseChat Overview and Summary

In the matter of Corbett v Nguyen (No 2), the plaintiff sought to recover costs from the defendant in relation to a cross-claim that was dismissed due to the plaintiff's primary claim failing. The matter was heard in the Supreme Court of New South Wales. The central dispute revolved around the circumstances under which the plaintiff could be awarded costs in relation to the dismissed cross-claim and whether there was a basis for setting off costs against each other and against the judgment.

The court was required to determine whether the plaintiff was entitled to costs of the cross-claim and if there were any grounds for setting off these costs against the costs of the defendant's appeal and against the judgment in the primary proceedings. The key legal issues centred on the applicability of the usual costs-following-the-event rule and whether exceptional circumstances warranted a different outcome.

The court held that the plaintiff was not entitled to costs of the dismissed cross-claim because the usual rule that costs follow the event did not apply in this instance. The dismissal of the cross-claim did not constitute an event in favour of the defendant that would justify awarding costs to the defendant. Additionally, the court found that there were no exceptional circumstances that would warrant setting off costs against each other and against the judgment. The reasoning was based on the principle that the costs incurred by the plaintiff in pursuing the cross-claim did not result in a benefit to the defendant that would entitle the defendant to a costs order.

Consequently, the court dismissed the plaintiff's application for costs in relation to the dismissed cross-claim and ruled against setting off costs in the manner sought by the plaintiff. The court's decision was grounded in the well-established legal principles governing costs in civil litigation, particularly the rule that costs generally follow the event and the limited circumstances under which costs may be set off.

Orders