Goo v Kim (Costs)

[2023] FCA 308

FEDERAL COURT OF AUSTRALIA

Goo v Kim (Costs) [2023] FCA 308

Appeal from:

Kim v Goo [2022] FedCFamC2G 602

File number(s):

NSD 743 of 2022

Judgment of:

HALLEY J

Date of judgment:

5 April 2023

Catchwords:

COSTS – application for indemnity costs –– where respondent’s failure to accept offers was not unreasonable – application dismissed –

Cases cited:

Goo v Kim [2022] FCA 1562

Vector Corrosion Technologies Limited v E-Chem Technologies Ltd [2022] FCA 519

Division:

General Division

Registry:

New South Wales

National Practice Area:

Commercial and Corporations

Sub-area:

General and Personal Insolvency

Number of paragraphs:

14

Date of last submission/s:

27 January 2023

Counsel for the Appellant:

G McDonald

Solicitor for the Appellant:

Rays Lawyers

Counsel for the Respondent:

D Eardley

Solicitor for the Respondent:

Praxis Lawyers

ORDERS

NSD 743 of 2022

BETWEEN:

MR SEOUNG JIN GOO

Applicant

AND:

MR JAY KOO KIM

Respondent

ORDER MADE BY:	HALLEY J
DATE OF ORDER:	5 APRIL 2023

THE COURT ORDERS THAT:

1.The respondent is to pay the appellant’s costs of and incidental to the hearing on Monday, 12 December 2022 of the interlocutory application for security for costs dated 24 October 2022 on the ordinary basis, as taxed or agreed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

HALLEY J:

1. On 22 December 2022, I made orders dismissing an application for security for costs filed by the respondent and providing that, subject to the filing of an application by either party for a special or alternative costs order, the respondent pay the appellant’s costs of and incidental to the hearing of the respondent’s application for security for costs. These reasons are to be read with my reasons for judgment: Goo v Kim [2022] FCA 1562 (J).

2. The appellant now seeks costs on an indemnity basis and the respondent seeks an order that costs be reserved.

3. The appellant relies on the following offers that it communicated to the respondent for the provision of security for costs:

   (a)$5,000 on 29 September 2022;

   (b)$10,000 on 11 October 2022; and

   (c)$15,000 on 15 December 2022.

4. The appellant submits that an order for indemnity costs should be made because (a) each offer constituted a genuine compromise of the dispute with respect to security for costs, (b) the respondent did not achieve a better result from litigating the issue, and (c) the respondent acted unreasonably in not accepting the offers given the appellant’s articulation of the reasons why security should not be granted.

5. The respondent submits that the costs of its application for security for costs should be reserved until the question raised in the appeal is resolved. It submits that the public interest in answering that question was a significant reason why security for costs was not ordered and the Court “may well find against” the appellant.

6. As Jagot J explained in Vector Corrosion Technologies Limited v E-Chem Technologies Ltd [2022] FCA 519 at [38]:

   The Court has a broad power to…