Goo v Sim (No 2)

Case [2022] NSWSC 651


Supreme Court


New South Wales

Medium Neutral Citation: Goo v Sim (No 2) [2022] NSWSC 651
Hearing dates: On the papers
Date of orders: 23 May 2022
Decision date: 23 May 2022
Jurisdiction:Equity
Before: Henry J
Decision:

Applications to vary costs order made on 8 April 2022 refused.

Catchwords:

COSTS – claims by successful defendant for indemnity costs and specified gross sum instead of assessed costs – whether walk-away offer of compromise made under r 20.26 of the UCPR involved real element of compromise – whether one business day for acceptance of a Calderbank offer was reasonable – whether defendant’s failure to produce documents constituted disentitling conduct for a costs order – whether circumstances warranted gross sum costs – indemnity costs order and gross sum costs order refused – plaintiff ordered to pay the defendant’s costs on ordinary basis as agreed or assessed

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW)

Civil Procedure Act 2005 (NSW)

Cases Cited:

Beach Petroleum NL v Johnson (1995) 57 FCR 119

Bennette v Cohen (No 2) [2009] NSWCA 162

Bobb v Wombat Securities Pty Ltd & Ors (No 2) [2013] NSWSC 863

Calderbank v Calderbank [1975] 3 All ER 333

Cellarit Pty Ltd v Cawarrah Holdings Pty Ltd (No 2) [2018] NSWCA 266

Clark v Commissioner of Taxation (2010) 222 FCR 102; [2010] FCA 415

Consolidated Lawyers Ltd v Abu-Mahmoud; Abu-Mahmoud v Consolidated Lawyers Ltd [2016] NSWCA 4

Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219

Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322

Evans Shire Council v Richardson (No 2) [2006] NSWCA 61

G R Vaughan (Holdings) Pty Ltd & Anor v Vogt & Anor [2006] NSWCA 263

Hamod v State of New South Wales and Anor [2011] NSWCA 375

Harrison v Schipp (2002) 52 NSWLR 738; [2002] NSWCA 213

Harvey v Barton(No 4) [2015] NSWSC 809

Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435; [2005] VSCA 298

Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd (No 2) [2008] NSWCA 85

Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391

Leichhardt Municipal Council v Green [2004] NSWCA 341

Miwa Pty Ltd v Siantan Properties Pty Ltd (No 2) [2011] NSWCA 344

Oikos Constructions Pty Ltd t/as Lars Fischer Construction v Ostin & Anor (No 2) [2021] NSWCA 98

Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11

Penson v Titan National Pty Limited (No 3) [2015] NSWCA 121

Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368

Smooth Pool v Pickering [2001] SASC 131

Taheri v Vitek (No 2) [2014] NSWCA 344

Valmont Interiors Pty Ltd v Giorgio Armani Australia Pty Ltd (No 3) [2021] NSWCA 160

Category:Costs
Parties: Seoung Jin Goo (First Plaintiff)
Tokorea Pty Limited (Second Plaintiff)
Oakwood Sydney Pty Limited (Third Plaintiff)
Sun Sick Sim (Defendant)
Representation:

Counsel:
D Eardley (Defendant)

Solicitors:
Rays Lawyer…

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Details
AGLC
Goo v Sim (No 2) [2022] NSWSC 651
Case
[2022] NSWSC 651
Decision Date

CaseChat Overview and Summary

The case of Goo v Sim (No 2) involved the plaintiff, Goo, and the defendant, Sim, before the Supreme Court of New South Wales. The dispute centred around claims made by Sim, who was the successful defendant, for indemnity costs and a specified gross sum instead of assessed costs. The plaintiff had initiated proceedings against the defendant in relation to a partnership dispute and the defendant's conduct during and after the partnership. The defendant sought indemnity costs and a gross sum of costs instead of assessed costs, arguing that a walk-away offer of compromise made under r 20.26 of the Uniform Civil Procedure Rules involved a real element of compromise, and that the one business day provided for acceptance of a Calderbank offer was reasonable. The defendant also claimed that the plaintiff's failure to produce documents constituted disentitling conduct for a costs order, and that the circumstances warranted gross sum costs.

The court considered whether the walk-away offer of compromise made by the defendant involved a real element of compromise, and whether the one business day provided for acceptance of a Calderbank offer was reasonable. The court found that the walk-away offer did not involve a real element of compromise, and that the one business day provided for acceptance of a Calderbank offer was not reasonable. The court also considered whether the plaintiff's failure to produce documents constituted disentitling conduct for a costs order, and whether the circumstances warranted gross sum costs. The court found that the plaintiff's failure to produce documents did not constitute disentitling conduct, and that the circumstances did not warrant gross sum costs.

The court refused the defendant's claims for indemnity costs and gross sum costs, and ordered the plaintiff to pay the defendant's costs on the ordinary basis as agreed or assessed. The court held that the walk-away offer did not involve a real element of compromise, and that the one business day provided for acceptance of a Calderbank offer was not reasonable. The court also held that the plaintiff's failure to produce documents did not constitute disentitling conduct, and that the circumstances did not warrant gross sum costs. The court noted that indemnity costs and gross sum costs are only appropriate in exceptional circumstances, and that the defendant had not demonstrated that the circumstances of this case warranted such an order.

In summary, the court refused the defendant's claims for indemnity costs and gross sum costs, and ordered the plaintiff to pay the defendant's costs on the ordinary basis as agreed or assessed. The court found that the walk-away offer did not involve a real element of compromise, and that the one business day provided for acceptance of a Calderbank offer was not reasonable. The court also found that the plaintiff's failure to produce documents did not constitute disentitling conduct, and that the circumstances did not warrant gross sum costs. The court held that indemnity costs and gross sum costs are only appropriate in exceptional circumstances, and that the defendant had not demonstrated that the circumstances of this case warranted such an order.

Orders

Orders of the court

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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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