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 99Texts Cited: Nil Category: Costs Parties: Biru Huang (Plaintiff)
Bernard Joseph Drumm (Defendant)Representation: Counsel:
Solicitors:
In person (Plaintiff) & Mr J Gibson (Mackenzie friend)
D F Elliot (Defendant)
Self-represented (Plaintiff)
Lander & Rogers (Defendant)
File Number(s): 2017/363068 Publication restriction: Nil
Judgment
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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.
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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…
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- Case
- [2018] NSWSC 1853
- Decision Date
CaseChat Overview and Summary
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.
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