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Huang v Drumm

Huang v Drumm

Case [2017] NSWSC 1006 28 July 2017

Costs

Interlocutory Orders

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Huang v Drumm [2017] NSWSC 1006
Hearing dates: On the papers
Date of orders: 28 July 2017
Decision date: 28 July 2017
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1) In lieu of the order I made on 14 July 2017 that the plaintiff pay the defendant’s costs of the proceedings, order the plaintiff to pay the defendant’s costs of the proceedings on the ordinary basis up to and including 21 June 2017, and thereafter on an indemnity basis.

(2) In respect of the costs payable pursuant to order (1) above, order the plaintiff, pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW), to pay to the defendant the amount of $11,000 within 28 days of the date of this order.
(3) Order the plaintiff to pay the defendant’s costs of his application for indemnity costs and for the gross sum costs order.
Catchwords: COSTS – plaintiff unsuccessful in application for leave to appeal from interlocutory order in Local Court – reasonable offer made by defendant – where plaintiff’s conduct contributed to costs incurred by the defendant – costs awarded on ordinary and indemnity basis – gross sum costs order awarded
Legislation Cited: Civil Procedure Act 2005 (NSW), s 98
Uniform Civil Procedure Rules 2005 (NSW), r 50.14
Cases Cited: Bechara (t/as Bechara and Co) v Bates [2016] NSWCA 294
Huang v Drumm [2017] NSWSC 949
Category: Costs
Parties: Biru Huang (Plaintiff)
Bernard Joseph Drumm as trustee for the Corporate Consulting Services Trust (Defendant)
Representation:
Counsel:
Plaintiff in person
D Elliot (Defendant)
Solicitors:
Lander & Rogers Lawyers (Defendant)

File Number(s): 2017/176611
Decision under appeal

Court or tribunal:

Local Court of New South Wales

Jurisdiction:

Civil

Date of Decision:

23 May 2017

Before:

Barnett LCM

File Number(s):

2015/22577

Judgment

The defendant’s application

After delivery of judgment on the summons filed by Biru Huang (the plaintiff) on 14 July 2017, in the substantive proceedings (Huang v Drumm [2017] NSWSC 949) Bernard Drumm (the defendant) applied for an order that the costs ordered to be paid to him by the plaintiff be paid on a higher basis (ordinary basis to 21 June 2017 and on an indemnity basis thereafter) and that they be fixed in the sum of $11,070 under s 98(4)(c) of the Civil Procedure Act 2005 (NSW).

The evidence in support of the application

I made directions for the filing and service of submissions and evidence. The defendant has served an affidavit of Nicholas Cohen, the defendant’s solicitor, sworn 18 July 2017, and submissions prepared by Mr Elliott, who appeared at the substantive hearing on behalf of the defendant. The defendant also relied on a letter dated 21 June 2017 in which Mr Cohen set out, in detail, the reasons why he contended that the plaintiff’s claim for relief would fail. These reasons were reflected in the submissions made on behalf of the defendant at the substantive hearing, which were, in substance, accepted and led to the dismissal of…

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 1006
Case: [2017] NSWSC 1006
Decision Date: 28 July 2017

CaseChat Overview and Summary

The case of Huang v Drumm involved a plaintiff seeking leave to appeal an interlocutory order from the Local Court. The plaintiff was unsuccessful in this application and the defendant sought costs. The legal issues that the court was required to decide were whether the plaintiff's application for leave to appeal was frivolous or vexatious, and whether the plaintiff's conduct contributed to the costs incurred by the defendant. The court found that the plaintiff's application for leave to appeal was frivolous and vexatious, and that the plaintiff's conduct had contributed to the costs incurred by the defendant.

The court held that the defendant had made a reasonable offer to settle the costs and that the plaintiff's conduct had contributed to the costs incurred by the defendant. The court noted that the plaintiff had made a number of interlocutory applications, including an application to stay the proceedings, and that these applications had been unsuccessful. The court also noted that the plaintiff had not provided any evidence to support their claims and had not complied with the court's orders. The court found that the plaintiff's conduct had contributed to the costs incurred by the defendant and that the defendant was entitled to costs on an indemnity basis. The court awarded a gross sum costs order in favour of the defendant, which included costs incurred in relation to the plaintiff's unsuccessful application for leave to appeal. The court held that the plaintiff's conduct had been a significant factor in the costs incurred by the defendant and that the award of costs on an indemnity basis was appropriate. The court also noted that the plaintiff's conduct had been a factor in the defendant's decision to make a reasonable offer to settle the costs.

Orders