Huang v Attapallil & Ors

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Huang v Attapallil & Ors [2017] NSWCA 181
Hearing dates:	17 July 2017
Decision date:	17 July 2017
Before:	Meagher JA at [1] and [42]; White JA at [2]
Decision:	Order that the applicant’s summons seeking leave to appeal filed on 10 February 2017 be dismissed with costs.
Catchwords:	COSTS – Indemnity basis – whether primary judge erred in awarding indemnity costs against applicant   APPEAL AND NEW TRIAL – Appeal – General principles – leave to appeal required – whether House v The King type error identified – no issue of principle – leave to appeal refused
Legislation Cited:	Civil Procedure Act 2005 (NSW) Crimes Act 1900 (NSW) District Court Act 1973 (NSW) Jurisdiction of Courts (Cross-vesting) Act 1987(NSW) Legal Profession Act 1987 (NSW) Trans-Tasman Proceedings Act 2010 (Cth)
Cases Cited:	Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 Gibson v Drumm [2016] NSWSC 570 House v The King (1936) 55 CLR 499; [1936] HCA 40 The Age Company Ltd & Ors v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26
Category:	Principal judgment
Parties:	Biru Huang (Applicant) Alexander Attapallil (1st Respondent) Joseph Assi (2nd Respondent) Charles Thornley (3rd Respondent)
Representation:	Counsel: In person (Applicant) D F Elliott (3rd Respondent)   Solicitors: n/a (Applicant) Lander & Rogers (3rd Respondent)
File Number(s):	2016/340280
Decision under appeal	Court or tribunal: District Court Jurisdiction: New South Wales Citation: n/a Date of Decision: 11 November 2016 Before: Gibb DCJ File Number(s): 2016/223849

Judgment

1. MEAGHER JA: I will ask White JA to give the first judgment.

2. WHITE JA: This is an application for leave to appeal against orders made in the District Court (Gibb DCJ) on 11 November 2016. The summons seeks leave to appeal from the whole of the decision below. It is clear from the draft notice of appeal and from the applicant’s (Ms Huang’s) submissions that she seeks to appeal only from orders as to “costs and quantum”. The other orders made on 11 November 2016 were made with her consent or were not opposed.

3. Leave is required pursuant to s 127(2)(b) of the District Court Act 1973 (NSW), because the orders sought to be appealed from are as to costs only.

4. Generally it is appropriate only to grant leave to appeal in cases that involve issues of principle, questions of public importance, or where it is reasonably clear that an error has been made, going beyond what is merely arguable, that occasions an injustice (Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[38]; The Age Company Ltd & Ors v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [13]).

5. The primary judge was called on to make a discretionary judgment in relation to costs. The principles in House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40 apply to an appeal from the exercise of that…