Lam v Luu

[2008] NSWSC 101

CITATION:	Lam v Luu [2008] NSWSC 101
HEARING DATE(S):	29 January 2008
JUDGMENT OF:	Gzell J
EX TEMPORE JUDGMENT DATE:	29 January 2008
DECISION:	Plaintiff ordered to pay second defedant's costs thrown away by the earlier vacation of the trial.
CATCHWORDS:	PROCEDURE - Costs - Plaintiff discontinued against second defendant - Trial previously vacated and costs reserved - Whether the plaintiff should be ordered to pay the second defendant's costs thrown away by the earlier vacation of the trial.
CATEGORY:	Procedural and other rulings
PARTIES:	Dung Lam - Plaintiff Kim Luu - Defendant (In Person)
FILE NUMBER(S):	SC 3927/05
COUNSEL:	Mr A Ogborne - For Plaintiff
SOLICITORS:	Ku & Sin Solicitors - For Plaintiff

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

TUESDAY 29 JANUARY 2008

3927/05 DUNG LAM v KIM LUU & ANOR

EX TEMPORE JUDGMENT

1 The plaintiff, at this late juncture on the first day of the trial, has discontinued its proceedings against the second defendant. I have ordered that the amended summons be dismissed against the second defendant and that the plaintiff pay the second defendant's costs.

2 Counsel for the first and second defendant at that time appeared on an application by the plaintiff before Palmer J to vacate a hearing that had been set down before his Honour. His Honour vacated the hearing and reserved the costs.

3 Immediately prior to the plaintiff making that application, he had put on his evidence in conformity with the latest in a series of orders directing him to do so. The defendants had not filed their material in opposition to that of the plaintiff.

4 The affidavit of Mr Zipkis of 17 May 2006, which is read on the second defendant's application that the order for costs should include those thrown away by the earlier vacation of the trial, sets out a history of disobedience to orders by the plaintiffs leading up to the application before Palmer J.

5 It seems to me that the plaintiff's dilatoriness in producing its evidence, notwithstanding the orders to which reference is made in the affidavit, were responsible for the vacation of the hearing before Palmer J, rather than the failure of the defendants, in the relatively short time available to them, to respond to the plaintiff's material.

6 I therefore include in the order for costs an order that the plaintiff pay the second defendant's costs thrown away by the vacation of the trial before Palmer J.