Han v Wong (No. 2)
[2020] VCC 985
•8 July 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-19-01259
| XIAOXIAO HAN | Plaintiff |
| v | |
| POH KUN WONG | Defendant |
---
JUDGE: | HIS HONOUR JUDGE COSGRAVE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Determined on the papers | |
DATE OF JUDGMENT: | 8 July 2020 | |
CASE MAY BE CITED AS: | Han v Wong (No. 2) | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 985 | |
REASONS FOR JUDGMENT
---
Subject: COSTS
Catchwords: Application for costs – powers of trial court to fix costs of proceeding – factors relevant to the court’s discretion to make gross costs order – unmeritorious defence by self-represented defendant – where conduct of self-represented defendant would lead to further delay – measures taken to minimise further expense to the successful plaintiff
Legislation Cited: County Court Civil Procedure Rules 2018 (Vic)
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr L Currie | Hall and Wilcox |
| For the Defendant | In person |
HIS HONOUR:
1 On 19 June 2020, I delivered my reasons for judgment (“the principal reasons”) in this matter. I concluded that Wong breached the agreement with Han by not repaying to her on 7 May 2018 the amount due under their agreement. I found that Wong should have repaid Han the sum of $505,231.52, together with interest from 7 May 2018 until the date of judgment. The parties had until 25 June 2020 to either agree upon the form of final order and costs or to file submissions on those issues. These reasons address those matters and assume the same terminology as, and familiarity with, the principal reasons.
2 Han filed submissions dated 24 June 2020. She said that the parties could not agree upon the costs orders. Wong filed no submissions.
3 Han was largely, but not totally, successful on her claim. She was correct in claiming the payment of money due.
4 Wong argued unsuccessfully that there was no money due and payable because Han’s husband, Zhang, had granted an extension of time and the deadline for payment had not become due.
5 Wong’s argument about the payment of interest was also rejected.
6 I accepted Wong’s submission that he was entitled to a set-off in relation to some of the shared expenses incurred in connection with the transportation and attempted sale of the vehicle. Wong claimed a set-off of $49,144, whereas I found the set-off was limited to $34,769.52.
7 Han submitted that costs should follow the event. She asked that, in order to avoid a potentially lengthy and expensive costs dispute with a self-represented litigant, the court should fix the costs payable in an amount of $45,000 or such other amount as the court deemed just. Alternatively, she argued that, if the court would not fix the costs of its own volition, the court should make orders that:
· Han prepare and serve an itemised bill of costs;
· Wong have the opportunity to respond to that bill;
· the court confirm the costs payable based upon these materials.
8 Pursuant to Rule 63A.07 of the County Court Civil Procedure Rules 2018, the court has power to order that, where a party is entitled to costs, instead of taxed costs, the party receive a gross amount or a sum of costs determined in such manner as the court directs.
9 According to Williams’ Civil Procedure Victoria,[1] the purpose of the rule is to avoid the expense, delay, and aggravation which can result from protracted litigation about the taxation of costs. As is the case with costs generally, the discretion must be exercised judicially and the affected parties are to receive a fair opportunity to be heard on the matter.
[1]At paragraph 63.07.15.
10 In the present case, I accept that it would be more efficient and quicker if the court made an order of the kind sought rather than engage in the process of taxation. As a self-represented litigant, Wong is unlikely to be familiar with the principles of law attaching to taxation of costs. If he were to insist upon a taxation and represent himself at such a hearing there would be further delay and cost incurred by Han in finalising the dispute. Wong’s defence was largely unmeritorious and Han should not be put to further needless expense to recover what is owed to her.
11 Accordingly, I have decided that the parties shall adopt the following procedure. Han is to prepare for the court a summary of the costs she incurred in conducting the litigation against Wong. I will not prescribe the level of detail required save that it need not be equivalent to a bill of costs in taxable form. The court simply requires a breakdown of the costs and disbursements in sufficient detail to make an appraisal of what figure would be appropriate as the recoverable costs payable to Han. The intention is that Han’s solicitor can prepare such a document and there is no need to engage a costs consultant. Once the document is filed at court and served, Wong will have a period of 14 days to file and serve any submissions in response about the costs sought. In preparing the summary, I direct that Han set out the actual solicitor/client costs incurred and also the specific amount that she seeks to recover from Wong. For example, in Han’s submissions already filed she seeks $45,000. It is important that it be clear to Wong precisely how much Han seeks. The court will then consider Han’s claim, and any submissions by Wong, before determining a gross sum as the amount which Han can recover from Wong.
12 I make the following orders:
1. By 4:00pm on 22 July 2020, the plaintiff file and serve a document detailing the plaintiff’s costs and disbursements incurred in connection with this proceeding and the amount claimed as recoverable from the defendant.
2. By 4:00pm on 6 August 2020, Wong file and serve any submissions in relation to the issue of costs.
3. Reserve liberty to the parties to apply by email to the Commercial Division Registry ([email protected]) for further directions upon giving reasonable notice to all other parties.
4. Costs reserved.
0
0
0