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He v Hecker (No 2)

He v Hecker (No 2)

Case [2013] NSWSC 1698 19 November 2013

Costs

Limitation Periods

Self-Represented Litigant

Civil Litigation & Procedure

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: He v Hecker (No 2) [2013] NSWSC 1698
Decision date: 19 November 2013
Jurisdiction: Common Law
Before: Harrison AsJ (in chambers)
Decision:
In relation costs of this appeal proceedings the Court orders that:
(1) The plaintiff is to pay the defendant's costs of the appeal on an ordinary basis.
(2) The plaintiff is to pay the defendant's costs of these proceedings in the gross fixed sum of $948.15.

Catchwords: COSTS - costs of appeal from Local Court - gross fixed sum costs order - whether self-represented litigant may claim compensation for loss of income
Legislation Cited: Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005
Cases Cited: Australian Blue Metal Ltd v Hughes [1970] 2 NSWR 119
Cachia v Hanes (1994) 179 CLR 403; [1994] HCA 14
Filmlock Pty Limitd v Nissi Investments Limited (No 3) [2013] NSWSC 1594
He v Hecker [2013] NSWSC 1219
Idoport Pty Limited v National Australia Bank [2007] NSWSC 23
Lawrence v M D Nikolaidis [2003] NSWCA 129
Lowal v Zoccoli (2002) 4 VR 399
Petrunic v Barnes [1989] VR 927
Secretary, Department of Foreign Affairs and Trade v Boswell (No 2) (1992) 39 FCR 288
Category: Costs
Parties: Ji He (Plaintiff)
Allyson Hecker (Defendant)
File Number(s): 2013/178500
Publication restriction: Nil

Judgment

HER HONOUR: This judgment deals with costs arising from an appeal from a Local Court decision.

On 3 September 2013, I delivered judgment: He v Hecker [2013] NSWSC 1219. The orders I made are as follows:

"(1) The appeal is dismissed.

(2) The decision of Magistrate Bradd dated 22 April 2013 is affirmed.

(3) The summons filed 24 June 2013 is dismissed.

(4) Costs are reserved."

The issue of costs has been dealt with by way of written submissions from both parties. On 11 November 2013, my associate received some unsolicited submissions from both Ms He and Ms Hecker. I have read the contents of Ms He's submissions and formed the view that what is contained there does not relate to the costs argument in these proceedings.

Ms Hecker's recent submissions relate to the costs involved in erecting the dividing fence and the removal of the encroachments on her property. While these do not relate to the costs issues in the Local Court and this Court, later in this judgment I shall refer to them to assist the parties as they relate to the implementation of the Magistrate's orders.

Both parties seek their costs of the appeal in this Court and their costs of the Local Court proceedings. Both litigants represented themselves in both the Local Court and in this Court.

Costs generally

The starting point is s 98 of the Civil Procedure Act 2005. It relevantly reads:

"98 Courts powers as to costs

(1) Subject to rules of court and to this or any other Act:

(a) costs are in the direction of the court, and

(b) The court has full power to determine by whom, to whom and to…

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 He v Hecker (No 2)

Details

AGLC: He v Hecker (No 2) [2013] NSWSC 1698
Case: [2013] NSWSC 1698
Decision Date: 19 November 2013

CaseChat Overview and Summary

The appeal is brought by the respondent, He, against the decision of Hecker, the appellant, in the Local Court. The dispute revolves around the costs incurred during the appeal process, specifically the gross fixed sum costs order and whether a self-represented litigant can claim compensation for loss of income. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether a self-represented litigant, who was successful in their appeal, could claim compensation for their loss of income during the time they spent on the appeal. The court had to determine the applicability of the gross fixed sum costs order and whether it was fair and just to compensate the respondent for the time lost. The court also needed to consider the balance between the costs of litigation and the necessity for self-represented litigants to be fairly compensated.

The court found that the gross fixed sum costs order was not intended to compensate for loss of income but rather to cover the reasonable costs of the appeal. The court acknowledged that the respondent, as a self-represented litigant, had incurred significant personal costs due to the appeal, but held that such compensation was not within the scope of the gross fixed sum costs order. The court emphasised the importance of maintaining a clear distinction between the costs of litigation and personal financial losses. Ultimately, the court ruled that the respondent was not entitled to compensation for loss of income under the gross fixed sum costs order.

The court's decision was that the respondent was not entitled to claim compensation for loss of income under the gross fixed sum costs order. The appeal was dismissed, and the orders of the Local Court were upheld. The court did not make any orders for costs.

Orders