Huang v Drumm (No. 2) - [2018] NSWSC 1853

Supreme Court

New South Wales

Medium Neutral Citation: Huang v Drumm (No. 2) [2018] NSWSC 1853
Hearing dates: On the papers
Date of orders: 05 December 2018
Decision date: 05 December 2018
Jurisdiction: Common Law
Before: Davies J
Decision:
I vary the costs order made by me on 27 August 2018 as follows:
The plaintiff is to pay the defendant’s costs in the sum of $35,000.
Catchwords: COSTS – party/party – whether appropriate to make order for specified gross sum instead of assessed costs – application by defendant after appeal from Local Court dismissed – Civil Procedure Act 2005 (NSW) s 98(4)(c) – where costs of both proceedings were disproportionate to amount in issue – where unnecessary costs were incurred due to conduct of plaintiff – where costs owed by plaintiff to defendant and defendants’ solicitors pursuant to previous orders were unpaid – where plaintiff impecunious – factors relevant to court’s discretion when quantifying discount on established costs – order made
Legislation Cited: Civil Procedure Act 2005 (NSW) ss 56, 60, 98
Supreme Court Rules 1970 (NSW) pt 52A r 6(2)
Cases Cited: Attorney General in and for the State of NSW v Bar-Mordecai [2013] NSWSC 1307
Australasian Performing Rights Association Ltd v Marlin [1999] FCA 1006
Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119
Bechara trading as Bechara and Company v Bates [2016] NSWCA 294
Bobb v Wombat Securities Pty Ltd (No 2) [2013] NSWSC 863
Coshott v Parker (No 3) [2015] NSWSC 1195
Gupta v Fordham Laboratories Pty Ltd (No 2) [2018] NSWSC 694
Hamod v State of New South Wales (No 13) [2009] NSWSC 756
Hamod v State of New South Wales and Anor [2011] NSWCA 375
Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213;
Huang v Drumm [2018] NSWSC 1300
Idoport Pty Limited v National Australia Bank Limited & Ors, Idoport Pty Limited v Donald Robert Argus [2007] NSWSC 23
Kostov v Nationwide News Pty Ltd (No.1) [2018] NSWSC 1822
Simone Starr-Diamond v Talus Diamond (No. 4) [2013] NSWSC 811
Stankovic v State of NSW (No. 2) [2016] NSWSC 335
Young v Hones (No 3) [2014] NSWSC 499
Zepinic v Chateau Constructions (Aust) Ltd (No 2) [2014] NSWCA 99
Texts Cited: Nil
Category: Costs
Parties: Biru Huang (Plaintiff)
Bernard Joseph Drumm (Defendant)
Representation:
Counsel:
In person (Plaintiff) & Mr J Gibson (Mackenzie friend)
D F Elliot (Defendant)
Solicitors:
Self-represented (Plaintiff)
Lander & Rogers (Defendant)

File Number(s): 2017/363068
Publication restriction: Nil

Judgment

I gave judgment in this matter on 27 August 2018. I dismissed the plaintiff’s amended summons and ordered her to pay the defendant’s costs of the proceedings: Huang v Drumm [2018] NSWSC 1300.
At the time of delivery of judgment, counsel for the defendant made an oral application that a gross sum costs order be made under s 98(4)(c) of the Civil Procedure Act 2005 (NSW). A timetable was proposed for the filing of submissions. I made directions for the filing of submissions and a direction that…

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 1853
Decision Date: 05 December 2018

CaseChat Overview and Summary

The case of Huang v Drumm (No. 2) arose from a dispute between the plaintiff, Huang, and the defendant, Drumm, with the matter being heard in the Local Court of New South Wales. The plaintiff sought compensation for injuries sustained in an incident involving the defendant. The dispute centred on the appropriate method for calculating and awarding costs following an appeal by the defendant from the Local Court's decision. The defendant argued that the costs incurred in both the Local Court and the appeal were disproportionate to the amount in dispute, and that additional costs were incurred due to the plaintiff's conduct. The defendant also contended that the plaintiff, who was impecunious, had not paid costs previously ordered against them. The court was tasked with deciding whether it was appropriate to order specified gross costs instead of assessed costs and, if so, the appropriate amount of the discount.

The court needed to consider whether it was appropriate to make an order for specified gross costs instead of assessed costs under section 98(4)(c) of the Civil Procedure Act 2005 (NSW). Key issues included whether the costs incurred were disproportionate to the amount in dispute, whether the plaintiff's conduct warranted additional costs, and the plaintiff's financial situation. The court also had to determine the appropriate discount on established costs, considering factors such as the plaintiff's conduct and financial circumstances. The court considered previous orders for costs that remained unpaid by the plaintiff, as well as the overall proportionality of the costs to the amount in dispute.

In making its decision, the court noted that the costs of both proceedings were disproportionate to the amount in issue. It found that the plaintiff's conduct contributed to the unnecessary costs incurred. Given the plaintiff's impecunious state and the unpaid costs from previous orders, the court exercised its discretion to order specified gross costs. The court quantified the discount on established costs, taking into account the factors mentioned. The court concluded that it was appropriate to make an order for specified gross costs rather than assessed costs, and set the amount of the discount based on the relevant considerations.

The court ordered that the defendant was to receive specified gross costs, calculated as a discount on the established costs. The court further ordered that the plaintiff pay the specified gross costs to the defendant within a specified period. This decision effectively addressed the disproportionate costs and the plaintiff's inability to pay the full amount, providing a practical resolution to the matter.

Orders