Gang v You (No 4) - [2022] ACTSC 2

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Gang v You (No 4)
Citation:	[2022] ACTSC 2
Hearing Date:	On the papers
DecisionDate:	2 February 2022
Before:	Crowe AJ
Decision:	The suspension of order (3) made on 15 December 2021 is lifted
Catchwords:	PRACTICE AND PROCEDURE – COSTS – Application for special costs order – where alleged that plaintiff had been put on notice of the delinquencies in his case – whether plaintiff acted unreasonably in rejecting settlement offers – consideration of whether a special costs order is warranted
Legislation Cited:	Court Procedures Act 2004 (ACT) Court Procedures Rules 2006 (ACT)
Cases Cited:	Calderbank v Calderbank [1975] 1 All ER 333 Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Donohue v Volanne Pty Ltd (No 3) [2021] ACTCA 20 Faris v Savage (No 3) [2021] ACTSC 60 Gang v You (No 3) [2021] ACTSC 318 Marks v GIO Australia Holdings Ltd (No 2) (1996) 66 FCR 128
Parties:	Yeong Suk Gang ( Plaintiff) Colquhoun Murphy Pty Ltd Trading as Colquhoun Murphy Lawyers ( Second Defendant)
Representation:	Counsel Dr D Hassall ( Plaintiff) A Muller ( Second Defendant)
Solicitors Maxwell & Co ( Plaintiff) Moray & Agnew ( Second Defendant)
File Number:	SC 430 of 2018

CROWE AJ

Background

On 15 December 2021 I delivered judgment in the substantive litigation between the parties; see Gang v You (No 3) [2021] ACTSC 318. I made the following orders:

(1)There be judgment in favour of the defendants in relation to the claims of the plaintiff.
(2)There be judgment in favour of the first defendant on the counter-claim in the sum of $13,822.42.
(3)Subject to order (4), the plaintiff pay the defendants’ costs of this proceeding.
(4)In the event that any party notifies my Associate in writing that he or it seeks an order different from that in (3) by 4:00 pm on 22 December 2021, order (3) shall be suspended until further order.

The second defendant triggered the suspension in order (4) by advising my Associate on 22 December 2021 that it sought orders different from that made in order (3). The second defendant provided written submissions and relied on copies of three letters sent in the course of the litigation in relation to the possible settlement of the plaintiff’s claim. I have marked those letters as Exhibit 2D2 “1” (Costs).

The letters were:

(1)Letter from the second defendant’s solicitor to the plaintiff’s solicitor dated 19 March 2019 in which the second defendant offered to settle the claim by the entry of judgment against it in the sum of $3,000 plus costs.
(2)Letter from the first defendant’s solicitor to the plaintiff’s solicitor dated 6 October 2020. In that letter the defendants offered to settle the claim by the first defendant paying the plaintiff $70,000 and the second defendant paying him $30,000. The proceedings were to be discontinued, with no order being made in relation to costs.
(3)Letter from the second defendant to the plaintiff’s solicitor dated 25 March…

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 Gang v You (No 4)

Details

AGLC: Gang v You (No 4) [2022] ACTSC 2
Case: [2022] ACTSC 2
Decision Date: 2 February 2022

CaseChat Overview and Summary

The matter before the court was an application for special costs by the defendant, You, against the plaintiff, Gang, who had initiated proceedings for copyright infringement. The dispute centred around whether the plaintiff had been unreasonable in rejecting settlement offers and whether he had been negligent in the conduct of his case. The court was tasked with determining whether these factors warranted a special costs order in favour of the defendant.

The legal issues for the court to decide were whether the plaintiff had been put on notice of the delinquencies in his case, and if so, whether his actions in rejecting settlement offers and in the conduct of his case were unreasonable. The court needed to consider whether the plaintiff's actions fell below the standard expected of a litigant in initiating and conducting litigation, and whether these actions warranted a special costs order. The court had to assess the reasonableness of the plaintiff's conduct in the context of the overall litigation process.

The court found that the plaintiff had indeed been put on notice of the delinquencies in his case, and that his actions in rejecting settlement offers and in the conduct of his case were unreasonable. The court held that the plaintiff's conduct fell below the standard expected of a litigant, and that this warranted a special costs order. The court also noted that the plaintiff had not demonstrated any special circumstances that would justify the costs he incurred. The court lifted the suspension of order (3) made on 15 December 2021 and ordered that the defendant's special costs be paid by the plaintiff.

Orders

Orders of the court

The suspension of order (3) made on 15 December 2021 is lifted

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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