Gang v You (No 2)

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

1. 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.

1. 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.  

1. 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

1. 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..”

1. 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…