Huang v Attapallil (No.4) - [2018] NSWSC 769

Supreme Court

New South Wales

Medium Neutral Citation: Huang v Attapallil (No.4) [2018] NSWSC 769
Hearing dates: On the papers
Date of orders: 25 May 2018
Decision date: 25 May 2018
Jurisdiction: Common Law
Before: Garling J
Decision:
(1) Order that Order 3 of the Court made 10 November 2017 be amended so as to read:

“Order the plaintiff to pay the third defendant’s costs on an indemnity basis.”
(2) Order that the plaintiff pay the third defendant’s costs determined as a gross sum in the amount of $27,890 in accordance with s 98(4)(c) of the Civil Procedure Act 2005.
Catchwords: COSTS – application by third defendant for indemnity costs order and specified gross sum costs order – Civil Procedure Act 2005, s 98(4)(c) – where offer of compromise not accepted – where proceedings brought by plaintiff were summarily dismissed – claims were ill-conceived and doomed to fail – whether offer of compromise was a real and genuine offer – where costs incurred by third defendant were reasonable – indemnity costs order made – gross sum costs order made
Legislation Cited: Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005
Cases Cited: Auspine Ltd v Australian Newsprint Mills Ltd [1999] FCA 673; (1999) 93 FCR 1
Gibson v Drumm [2016] NSWSC 570
Hadid v Lenfest Communications Inc [2000] FCA 628
Hamod v State of New South Wales [2011] NSWCA 375
Harrison v Schipp [2002] NSWCA 213; (2002) 54 NSWLR 738
Huang v Attapallil (No.2) [2017] NSWSC 1382
Savage v Australian Unit Fund Management Ltd [2011] NSWCA 270
The Uniting Church v Takacs (No.2) [2008] NSWCA 172
Texts Cited: Not Applicable
Category: Procedural and other rulings
Parties: Biru Huang (P)
Alex Attapallil (D1)
Joseph Assi (D2)
Charles Thornley (D3)
Geoffrey O’Shea (D4)
Representation:
Counsel:
In person (P)
Mentioned (D1)
J Assi (D2)
F Elliott (D3)
G O’Shea (D4)
Solicitors:
Lander & Rogers (D3)

File Number(s): 2016/332818
Publication restriction: Not Applicable

Judgment

On 10 November 2017, for the reasons which I then published, I ordered that the whole of the proceedings commenced by Summons dated 8 November 2016 be dismissed. I ordered that Ms Huang pay the third defendant’s costs. The third defendant was Mr Charles Thornley. The reasons for these orders are to be found in Huang v Attapallil (No.2) [2017] NSWSC 1382 (“the principal judgment”).
I reserved to the third defendant the right to seek an alternative order for costs.
On 16 November 2017, the third defendant notified the Court and Ms Huang that it sought the following alternative costs orders:

the plaintiff to pay the third defendant’s costs of the proceedings on an indemnity basis; and

the Court, pursuant to s 98(4) of the Civil Procedure Act 2005, fix Mr Thornley’s costs and disbursements in the sum of $27,890.

On 16 November 2017, I ordered that the application for alternative costs orders be determined on the papers. I also made directions with respect to the filing of any affidavits and submissions.
This judgment, which assumes familiarity with…

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.

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Details

Case: [2018] NSWSC 769
Decision Date: 25 May 2018

CaseChat Overview and Summary

The parties involved in this case were Huang and Attapallil. Huang brought a claim against Attapallil, which was subsequently dismissed summarily. Attapallil, the third defendant, applied for an indemnity costs order and a specified gross sum costs order, under the Civil Procedure Act 2005, section 98(4)(c). The application centred on the offer of compromise that was made but not accepted, and the reasonableness of the costs incurred by the third defendant.

The central legal issue before the court was whether the offer of compromise made by Attapallil was a real and genuine offer. The court also needed to determine if the proceedings brought by Huang were ill-conceived and destined to fail. Additionally, the court had to consider whether the costs incurred by Attapallil were reasonable and justified in the circumstances.

The court found that the offer of compromise was indeed a genuine and real offer, as it was made in good faith and was not a mere tactic to delay the proceedings. The court further determined that Huang's claims were ill-conceived and were always likely to fail. Consequently, the court found that the costs incurred by Attapallil were reasonable. As a result, the court made an indemnity costs order and a specified gross sum costs order in favour of the third defendant.

The court ordered that the third defendant, Attapallil, was to be awarded indemnity costs and a specified gross sum costs order, as the proceedings brought by Huang were ill-conceived and doomed to fail. The court also found that the offer of compromise made by Attapallil was genuine, and the costs incurred by Attapallil were reasonable.

Orders