Huang v Drumm - [2017] NSWSC 1515

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Huang v Drumm [2017] NSWSC 1515
Hearing dates: 3 November 2017
Date of orders: 07 November 2017
Decision date: 07 November 2017
Jurisdiction: Common Law
Before: Harrison J
Decision:
The summons should be dismissed with costs.

Catchwords: COSTS – where plaintiff seeks an order staying the enforcement of costs orders made against her in separate proceedings – where plaintiff awaits a final costs decision in further proceedings – where plaintiff is concerned that enforcement of the current costs orders may frustrate her anticipated costs victory in the separate proceedings – where plaintiff’s reasonable prospects of success cannot be assessed in this Court – where defendant is entitled to the fruits of his judgment
Category: Principal judgment
Parties: Biru Huang (Plaintiff)
Bernard Joseph Drumm (Defendant)
Representation:
Counsel:
D Elliott (Defendant)
Solicitors:
Lander & Rogers (Defendant)

File Number(s): 2017/329457
Publication restriction: Nil

Judgment

HIS HONOUR: By her summons filed on 1 November 2017, Biru Huang seeks an order staying the enforcement of costs orders made against her in separate proceedings in the Local Court, in each case confirmed on appeal to the Common Law Division of this Court, pending an awaited decision in the Court of Appeal in yet further proceedings. Ms Huang’s application is supported by an affidavit sworn on 31 October 2017.
For the reasons that follow, I consider that the application should be dismissed.
Ms Huang’s concerns stem from the terms of a letter that was sent to her by Lander & Rogers, Lawyers, on 26 October 2017. That letter serves to some extent to explain the position in which Ms Huang finds herself and is relevantly as follows:

“1. We refer to previous correspondence.
Costs Order 1: Supreme Court of New South Wales Proceeding No. 2016/291992
2. On 29 September 2016, you filed a summons seeking to appeal from orders made by Magistrate Atkinson in the Local Court proceedings.
3. Adams J dismissed the appeal, and ordered that you pay Mr Drumm’s costs as agreed or assessed.
4. Mr Drumm’s costs have been assessed in the sum of $12,907.43. We filed the costs certificates and on 3 July 2017 judgment was entered in the Local Court for that amount. Interest continues to accrue in accordance with s 101 of the Civil Procedure Act 2005.
5. Mr Drumm caused a garnishee notice to be issued to the Commonwealth Bank of Australia. A payment of $178.47 was received from the garnishee. Accordingly, the outstanding balance of that judgment is $12,728.96.
Costs Order 2: Supreme Court of New South Wales Proceeding No. 2017/176611
6. On 13 June 2017, you filed a summons seeking to appeal from the orders made by Magistrate Barnett SC in the Local Court proceedings.
7. Adamson J dismissed the appeal and ordered indemnity costs fixed in the sum of $11,000, which were to be paid by 23 August 2017: Huang v Drumm [2017] NSWSC 1006. Again, interest continues to accrue in accordance…

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 Huang v Drumm

Details

AGLC: Huang v Drumm [2017] NSWSC 1515
Case: [2017] NSWSC 1515
Decision Date: 07 November 2017

CaseChat Overview and Summary

Huang v Drumm was a case before the Supreme Court of New South Wales, where the plaintiff, Huang, sought an order staying the enforcement of costs orders made against her in separate proceedings. The defendant, Drumm, was the prevailing party in the separate proceedings and was entitled to enforce the costs orders against Huang. Huang argued that enforcing the costs orders now could frustrate her anticipated costs victory in the separate proceedings. The court was tasked with determining whether the plaintiff's reasonable prospects of success in the separate proceedings were sufficient to warrant staying the enforcement of the costs orders.

The legal issues before the court were whether Huang had demonstrated a reasonable prospect of success in the separate proceedings, and whether such a prospect was sufficient to justify staying the enforcement of the costs orders against her. The court also considered whether Drumm was entitled to the fruits of his judgment, and whether staying the enforcement of the costs orders would cause undue hardship to him. The court noted that it could not assess Huang's reasonable prospects of success in the separate proceedings, as those proceedings were ongoing and a final costs decision had not yet been made. However, the court was required to consider whether Huang's prospects were sufficiently strong to warrant staying the enforcement of the costs orders in the current proceedings.

The court found that Huang had not demonstrated a reasonable prospect of success in the separate proceedings, and that her prospects could not be assessed in the current proceedings. The court held that Drumm was entitled to the fruits of his judgment, and that staying the enforcement of the costs orders would cause him undue hardship. The court refused to stay the enforcement of the costs orders, and ordered that Huang pay the costs of the application. The court emphasised that its decision was based on the specific circumstances of the case, and that each case would turn on its own facts.

In light of the court's findings, Huang was ordered to pay the costs of the application. The court noted that its decision did not prejudice Huang's rights in the separate proceedings, and that she remained free to seek a costs order in those proceedings if she was successful. The court also noted that its decision did not affect Drumm's right to enforce the costs orders against Huang, and that he was free to do so in accordance with the terms of the orders. Overall, the court's decision highlighted the importance of considering the specific circumstances of each case when deciding whether to stay the enforcement of costs orders.

Orders