Gang v You (No 2)
[2020] ACTSC 148
•5 June 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Gang v You (No 2) |
Citation: | [2020] ACTSC 148 |
Hearing Date: | Submissions last received 29 May 2020. |
DecisionDate: | 5 June 2020 |
Before: | Crowe AJ |
Decision: | See [15] |
Catchwords: | COSTS – First defendant partly successful in Application in Proceeding – whether the plaintiff should be ordered to pay the first defendant’s costs now – whether the circumstances justify an order that the costs be the first defendant’s costs in the cause. |
Legislation Cited: | Court Procedures Act 2004 (ACT) – s 5A |
Cases Cited: | Aon Risk Services Australia Ltd v ANU (2009) 239 CLR 175 Dibeek Holdings Pty Ltd v Notaras (1998) 143 FLR 132 |
Parties: | Yeong Suk Gang (Plaintiff) Jin Ho You (First Defendant) |
Representation: | Counsel Dr Hassall (Plaintiff) Mr Buckland (First Defendant) |
| Solicitors Maxwell & Co (Plaintiff) Mills Oakley (First Defendant) | |
File Number: | SC 430 of 2018 |
Crowe AJ:
Introduction
On 1 May 2020, I handed down my reasons for striking out parts of the relief claimed by the plaintiff in his Amended Statement of Claim dated 20 September 2019. I expressed the preliminary view that due to the complexity of the relationship and dealings between the parties, it was appropriate to order that the costs of the first defendant’s Application in Proceeding dated 25 February 2020 be the first defendant’s costs in the cause. However, I granted the parties leave to seek a different order by notice, within 14 days, to my Associate. The first defendant exercised that leave. On 15 May 2020, I directed that the first defendant file and serve his submissions as to costs by 22 May 2020. The plaintiff was to respond by 29 May 2020.
The first defendant sought an order that the Plaintiff pay his costs of and incidental to the Application in Proceeding dated 25 February 2020, on a party/party basis.
As a consequence of the first defendant exercising the leave to seek a different costs order, the parties were restrained from taking out Order (4) of the orders I made provisionally on 1 May 2020 until further order.
Submissions of First Defendant
The first defendant relies on the proposition that he was required to bring the matter to court to rectify defects in the plaintiff’s pleading of his claim. The first defendant refers to a “guideline” stated by Higgins J in Dibeek Holdings Pty Ltd v Notaras (1998) 143 FLR 132 (Dibeek Holdings) at [86] to the effect that “If a party makes a successful motion based on an irregularity or default committed by the opposing party, that party should have costs in any event..”
It was submitted by the first defendant that various pleadings of the defence dated 29 November 2018, put the plaintiff on notice of problems in the plaintiff’s statement of claim. This related particularly to the blurring of the losses of the plaintiff and of the company CU Tiling Pty Ltd (the plaintiff’s tiling company). It was submitted that the plaintiff failed to heed the warnings given by the first defendant’s defence, which led to the need for the first defendant to make the Application in Proceeding, which was the subject of my judgment dated 1 May 2020.
The assessment of the reasonableness of the plaintiff’s position should be informed by the decision in Aon Risk Services Australia Ltd v ANU (2009) 239 CLR 175 and s 5A of the Court Procedures Act 2004 (ACT).
The first defendant argued that the appropriate order as to costs is that the plaintiff pay the first defendant’s costs on a party/party basis.
Submissions of the Plaintiff
The plaintiff submitted that the first defendant succeeded in relation to part of the relief sought in his application. The first defendant had sought summary judgment, and also that the plaintiff not be permitted to replead in relation to all but one paragraph of the relief claimed. The first defendant was unsuccessful on those issues.
The plaintiff also relied on the decision of Higgins J (as he then was) in Dibeek Holdings. Reference was made to paragraph [84] of his Honour’s decision where he said:
In general, a party successfully making a motion will be entitled to costs only on the basis that they are that party’s costs in the cause. Conversely, a party failing in such a motion is not entitled to costs but the opposing party will be entitled to costs on the basis that they are that party’s costs in the cause.
It was submitted by the plaintiff that nothing in the circumstances of this case takes the matter outside the general approach summarised by Higgins J in the above passage. The plaintiff submitted that the appropriate order was the provisional order which I made as Order (4) on 1 May 2020.
Consideration
There is some force in the submissions made by both parties. The issue here is certainly within the grey area where there is no clearly correct outcome. Rather, there is a range of outcomes which might properly reflect the countervailing considerations.
Ultimately, I am not persuaded that the conduct of the plaintiff in resisting the first defendant’s application in proceeding was sufficiently unreasonable to warrant departing from the general approach referred to by Higgins J at [84] of Dibeek Holdings. This was particularly so having regard to the particular complexities of this case which I referred to at paragraph [73] of my judgment delivered on 1 May 2020.
I am satisfied that having regard to the circumstances of this case it is appropriate that the first defendant’s recovery of its costs of the Application in Proceeding should abide his successful defence of the action. Of course, if that defence is not successful the effect of the order will be that the plaintiff will not be able to recover his costs in relation to the application in proceeding, even though he might obtain an order that the first defendant pay his costs of the action.
Having regard to the above, I decline to make an order in substitution for Order (4) made on 1 May 2020. I will lift the restraint on the taking out of that order.
Orders
The order of the Court is:
(1)Order (4) made on 1 May 2020 may now be taken out pursuant to the Court Procedure Rules 2004 (ACT).
| I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Crowe. Associate: Date: |
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