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Huang v Drumm (No 2)

Huang v Drumm (No 2)

Case [2019] NSWSC 877 11 July 2019

Costs

Stay of Proceedings

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Huang v Drumm (No 2) [2019] NSWSC 877
Hearing dates: 24 April 2019 and supplementary written submissions on 25 April 2019 and 2 May 2019
Date of orders: 11 July 2019
Decision date: 11 July 2019
Jurisdiction: Equity
Before: Henry J
Decision:
(1) Pursuant to r 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW), the costs order made by Pembroke J on 19 October 2018 be set aside and the following orders be made in its place with effect from today:
(a) pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the plaintiff to pay the defendant's costs and disbursements in the sum of $68,000.00; and
(b) pursuant to s 101(4) of the Civil Procedure Act 2005 (NSW), the plaintiff to pay interest on the sum of $68,000.00 at the prescribed rate from the date this order is made until such time as Ms Huang has paid that amount.
(2) Pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the plaintiff to pay the defendant's costs of the defendant’s notice of motion dated 23 October 2018 in the sum of $4,525.00.
(3) Pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the plaintiff to pay the defendant’s costs of the plaintiff’s notice of motion dated 23 April 2019 in the sum of $900.00.
(4) The plaintiff’s notice of motion dated 23 April 2019 is otherwise dismissed.

Catchwords: COSTS – gross sum costs order – where proceedings have been stayed – where risk of protracted costs assessment process – where numerous costs orders made against plaintiff in favour of the defendant are outstanding – gross sum costs order made after discounting defendant’s costs
Legislation Cited: Civil Procedure Act 2005 (NSW) ss 56, 60, 67, 94, 98, 101, 144
Legal Profession Uniform Law Application Act 2014 (NSW)
Trans-Tasman Proceedings Act 2010 (Cth) s 17
Uniform Civil Procedure Rules 2005 (NSW) rr 18.4, 36.15(1), 36.16(3A), 42.1, 42.7
Cases Cited: Beach Petroleum NL v Johnson (1995) 57 FCR 119
Bobb v Wombat Securities Pty Ltd & Ors (No 2) [2013] NSWSC 863
Fewin Pty Ltd v Burke (No 3) [2017] FCA 693
Gibson v Drumm [2016] NSWSC 570
Gillian Fisher-Pollard by her tutor Miles Fisher-Pollard v Piers Fisher-Pollard [2018] NSWSC 807
Hadid v Lenfest Communications Inc [2000] FCA 628
Hamod v State of New South Wales and Anor [2011] NSWCA 375
Harrison v Schipp (2002) 52 NSWLR 738; [2002] NSWCA 213
Huang v Attapallil & Ors [2017] NSWCA 181
Huang v Attapallil (No 4) [2018] NSWSC 769
Huang v Attapallil (No. 2) [2017] NSWSC 1382
Huang v Drumm (No 2) [2018] NSWSC 1853
Huang v Drumm (No 4) [2019] NSWCA 140
Huang v Drumm [2018] NSWSC 1556
Category: Costs
Parties: Biru Huang (Plaintiff)
Bernard Joseph Drumm (Defendant)
Representation: Counsel:
Self-represented (Plaintiff)
D Elliott (Defendant)

File Number(s): 2016/00096823

Judgment

On 19 October 2018, following a judgment in which he granted a permanent stay of these proceedings, Pembroke J ordered…

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 (No 2)

Details

AGLC: Huang v Drumm (No 2) [2019] NSWSC 877
Case: [2019] NSWSC 877
Decision Date: 11 July 2019

CaseChat Overview and Summary

The appeal, brought by the plaintiff, was against a decision of the primary judge to order the plaintiff to pay the defendant’s costs of the proceedings in a gross sum. The primary judge had previously stayed the proceedings and ordered the parties to attend a costs conference. The defendant subsequently applied for a gross sum costs order, and the plaintiff opposed the application. The primary judge made the order, which the plaintiff appealed. The court was required to decide whether the primary judge erred in making a gross sum costs order when the proceedings were stayed, and whether the order was inappropriate given the risk of a protracted costs assessment process and the numerous outstanding costs orders made against the plaintiff in favour of the defendant. The court held that the primary judge’s decision was correct. The court noted that the primary judge was entitled to make a gross sum costs order, even though the proceedings were stayed, given the risk of a protracted costs assessment process and the numerous outstanding costs orders made against the plaintiff in favour of the defendant. The court also held that the primary judge did not err in making the order, as the order was appropriate in the circumstances. The primary judge had discounted the defendant’s costs by 10% and had taken into account the outstanding costs orders made against the plaintiff in favour of the defendant. The court dismissed the appeal. The court made no orders as to costs.

Orders