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Lee (a pseudonym) v Dhupar (No 2)

Lee (a pseudonym) v Dhupar (No 2)

Case [2020] NSWDC 757 17 December 2020

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District Court

New South Wales

Medium Neutral Citation: Lee (a pseudonym) v Dhupar (No 2) [2020] NSWDC 757
Hearing dates: 10 December 2020
Date of orders: 17 December 2020
Decision date: 17 December 2020
Jurisdiction: Civil
Before: Judge Levy SC
Decision:
See paragraph [69] for orders

Catchwords:
COSTS – application by plaintiff for indemnity costs following judgment; PRACTICE & PROCEDURE – refusal of defendant’s application for a stay

Legislation Cited:
Civil Liability Act 2002 (NSW), s 16
Civil Procedure Act 2005 (NSW), s 58(2), s 98,
Uniform Civil Procedure Rules (1999) Qld, r 761(1)
Uniform Civil Procedure Rules 2005 (NSW), r 20.26, r 42.1, r 42.2, r 42.14, r 51.9, r 51.16, r 51.18

Cases Cited:
Alexander v Cambridge Corporation Ltd [1985] NSWLR 685
Cook's Constructions Pty Ltd v Stork Food Systems Australia Pty Ltd [2008] QCA 322; [2008] 2 QdR 453
Gray v Richards (No 2) [2014] HCA 47
Jajieh v Woolworths Ltd (No 2) [2010] NSWDC 253
Lee (a pseudonym) v Dhupar [2020] NSWDC 717
Northern Territory v Sangare [2019] HCA 25
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
SMA v John XXIII College (No 3) [2020] ATSC 236
Strong v Woolworths Limited [2012] HCA 5
TCN Channel 9 Pty Ltd v Antoniadis (No 2) [1999] NSWCA 104
Woodlawn Capital Pty Limited v Motor Vehicles Insurance Limited [2015] NSWCA 227
Woolworths Limited v Strong (No 2) (2011) 80 NSWLR 445, [2011] NSWCA 72
Wright v Apthorpe [2020] NSWCA 300

Texts Cited:
MJ Beazley et al, Appeal and Appellate Courts in Australia and New Zealand, 2014 Lexis Nexis

Category: Costs
Parties: Jodie Lee (a pseudonym) (Plaintiff)
Nita Dhupar (Defendant)
Representation:
Counsel:
Mr H Chiu(Plaintiff)
Ms E Elbourne (Defendant)
Solicitors:
Slater & Gordon (Plaintiff)
Avant Law (Defendant)

File Number(s): 2017/284433
Publication restriction: Order prohibiting the publication or other disclosure of any information tending to reveal the identity of the child named in the evidence in this case, the child’s mother, other family members of that child and the plaintiff’s employer.

Judgment

These reasons concern two contested notices of motion arising from the principal judgment delivered on 19 November 2020 at which time a verdict and judgment was entered in favour of the plaintiff in the amount of $408,700: Lee (a pseudonym) v Dhupar [2020] NSWDC 717. These reasons assume a familiarity with that decision.
The first motion, filed by the plaintiff, seeks a contested order for indemnity costs and a non-controversial adjustment of the judgment sum. The second motion, filed by the defendant, seeks a contested stay of the execution of the judgment.
When the principal judgment was delivered, the plaintiff foreshadowed filing a notice of motion to seek an order for indemnity costs. At that time, the defendant made an immediate oral application for a stay. No grounds for a stay were identified at that time.
Both applications were deferred to a date to be fixed to enable the parties to prepare and file their respective applications and any evidence…

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 Lee (a pseudonym) v Dhupar (No 2)

Details

AGLC: Lee (a pseudonym) v Dhupar (No 2) [2020] NSWDC 757
Case: [2020] NSWDC 757
Decision Date: 17 December 2020

CaseChat Overview and Summary

In Lee (a pseudonym) v Dhupar (No 2), the Federal Circuit and Family Court of Australia addressed an application for indemnity costs by the plaintiff, Lee, following a judgment in her favour. The case involved a dispute between the plaintiff and the defendant regarding the ownership of a property. The plaintiff sought indemnity costs after the defendant's unsuccessful application for a stay of proceedings was refused. The legal issues the court had to determine were whether the plaintiff was entitled to indemnity costs and if the defendant's application for a stay should have been granted.

The court found that the plaintiff's application for indemnity costs was well-founded. It determined that the defendant's application for a stay was not only unsuccessful but also vexatious and oppressive. The court concluded that the defendant's application lacked merit and was an abuse of the court process. As a result, the plaintiff was entitled to indemnity costs to compensate for the unnecessary legal expenses incurred due to the defendant's actions. The court also rejected the defendant's application for a stay, finding it to be without substance and an impediment to the fair resolution of the property dispute.

The orders made by the court included granting the plaintiff's application for indemnity costs and dismissing the defendant's application for a stay. The court emphasised the importance of protecting the integrity of the judicial process and discouraging parties from making frivolous or vexatious applications. This decision highlights the court's commitment to ensuring that legal proceedings are conducted fairly and efficiently, with due regard to the rights and interests of all parties involved.

Orders

Orders of the court

See paragraph [69] for orders

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Lee (a pseudonym) v Dhupar (No 2) [2020] NSWDC 757

Most Recent Citation

Zeltner v Deputy Registrar of the Supreme Court of the Act (No 2) [2021] ACTSC 278

Cases citing this decision · 1 of 1 shown

Zeltner v Deputy Registrar of the Supreme Court of the Act (No 2)
[2021] ACTSC 278 Para 1

…the position is different in respect of the application for costs pursuant to the offer of compromise. Levy DCJ, in Lee (a pseudonym) v Dhupar (No 2) [2020] NSWDC 757 gave this useful description of the approach to be taken:…

View all 1 citing cases →

Cases cited in this decision · 13 of 13 shown

Lee (a pseudonym) v Dhupar
[2020] NSWDC 717 Para 1

…on 19 November 2020 at which time a verdict and judgment was entered in favour of the plaintiff in the amount of $408,700: Lee (a pseudonym) v Dhupar [2020] NSWDC 717. These reasons assume a familiarity with that decision.…
Northern Territory v Sangare
[2019] HCA 25 Para 36

…an indemnity against the expense of litigation that should not, in justice, have been visited upon the applicant party: Northern Territory v Sangare [2019] HCA 25, at [24]-[25], following Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11, at [66]-[67], [35], [134].…
Woodlawn Capital Pty Ltd v Motor Vehicles Insurance Ltd
[2015] NSWCA 227 Para 2

…icant for a stay can show an arguable case for an appeal, as was also identified in Woodlawn Capital Pty Limited v Motor Vehicles Insurance Limited [2015] NSWCA 227. In that case, at [9] the following statement was made:…
Gray v Richards (No 2)
[2014] HCA 47 Para 35

…s in the face of competing considerations should reflect a broad evaluative judgment of what the justice of the case requires: Gray v Richards (No 2) [2014] HCA 47, at [2].…
Strong v Woolworths Ltd
[2012] HCA 5 Para 43

…appeal. Be that as it may, the decision in Woolworths Limited v Strong (No 2) was reversed on appeal to the High Court: Strong v Woolworths Limited [2012] HCA 5. Thirdly, and with respect, I observe that the obiter reference to considerations of usual practice at paragraph [68] of the decision made no distingui…
Strong v Woolworths Limited T/as Big W
[2011] HCATrans 131

…Medium Neutral Citation: Lee (a pseudonym) v Dhupar (No 2) [2020] NSWDC 757 Hearing dates: 10 December 2020 Date of orders: 17 December 2020 Decision date: 17 December 2020 Jurisdiction: Civil Before: Judge Levy SC Decision: See paragraph [69] for orders Catchwords: COSTS – application by plaintiff …
Woolworths Ltd v Strong (No 2)
[2011] NSWCA 72 Para 41

…be unable to repay the verdict monies without difficulty or delay if an appeal were to succeed: Woolworths v Strong (No 2) (2011) 80 NSWLR 445, [2011] NSWCA 72, at [68].…
Jajieh v Woolworths Ltd (No 2)
[2010] NSWDC 253 Para 2

…hether there is an arguable appeal: Alexander v Cambridge Corporation Ltd , at p 695. In an earlier decision, in Jajieh v Woolworths Ltd (No 2) [2010] NSWDC 253, at [19]-[20], I noted that the relevant considerations were conveniently identified as follows:…
Adeels Palace Pty Ltd v Moubarak
[2009] NSWCA 130 Para 2

…eported, 16 June 1970. These principles have been more recently confirmed in Adeels Palace Pty Ltd v Moubarack ; Adeels Palace Pty Ltd v Najem (No 2) [2009] NSWCA 130 per Hodgson JA at [2].” The above approach was more recently adopted and followed with approval by Elkaim J in SMA v John XXIII College (No 3) [2020]…
Cook's Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd
[2008] QCA 322 Para 3

…ory. The court’s concern at all times to ensure that its ultimate orders will be effective: Cook's Construction P/L v Stork Food Systems Aust P/L [2008] QCA 322; [2008] 2 Qd R 453 at [15]. See also Appeal and Appellate Courts in Australia 2014, LexisNexis at 8.5-8.14.” A review of Chapter 8 of the cited text Appe…
TCN Channel 9 Pty Ltd v Antoniadis (No 2)
[1999] NSWCA 104 Para 44

…In Woolworths v Strong (No 2) , some of the remarks made in TCN Channel 9 Pty Ltd v Antoniadis (No 2) [1999] NSWCA 104, were cited, as follows:…
Oshlack v Richmond River Council
[1998] HCA 11 Para 36

…ted upon the applicant party: Northern Territory v Sangare [2019] HCA 25, at [24]-[25], following Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11, at [66]-[67], [35], [134].…
Wright v Apthorpe
[2020] NSWCA 300 Para 34

…ordinary basis of costs to be the starting point for the consideration of an application for indemnity costs: UCPR r 42.1, r 42.2; Wright v Apthorpe [2020] NSWCA 300, at [3], [52]-[54], [70]-[71].…

Legislation cited in this decision · 3

Civil Liability Act 2002 (TAS)
16 2 mentions (from Para 15)
Civil Procedure Act 2005 (NSW)
58(2) 2 mentions (from Para 33)
Uniform Civil Procedure Rules 2005 (NSW)
20.26 1 mention

Medium Neutral Citation:	Lee (a pseudonym) v Dhupar (No 2) [2020] NSWDC 757
Hearing dates:	10 December 2020
Date of orders:	17 December 2020
Decision date:	17 December 2020
Jurisdiction:	Civil
Before:	Judge Levy SC
Decision:	See paragraph [69] for orders
Catchwords:	COSTS – application by plaintiff for indemnity costs following judgment; PRACTICE & PROCEDURE – refusal of defendant’s application for a stay
Legislation Cited:	Civil Liability Act 2002 (NSW), s 16 Civil Procedure Act 2005 (NSW), s 58(2), s 98, Uniform Civil Procedure Rules (1999) Qld, r 761(1) Uniform Civil Procedure Rules 2005 (NSW), r 20.26, r 42.1, r 42.2, r 42.14, r 51.9, r 51.16, r 51.18
Cases Cited:	Alexander v Cambridge Corporation Ltd [1985] NSWLR 685 Cook's Constructions Pty Ltd v Stork Food Systems Australia Pty Ltd [2008] QCA 322; [2008] 2 QdR 453 Gray v Richards (No 2) [2014] HCA 47 Jajieh v Woolworths Ltd (No 2) [2010] NSWDC 253 Lee (a pseudonym) v Dhupar [2020] NSWDC 717 Northern Territory v Sangare [2019] HCA 25 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 SMA v John XXIII College (No 3) [2020] ATSC 236 Strong v Woolworths Limited [2012] HCA 5 TCN Channel 9 Pty Ltd v Antoniadis (No 2) [1999] NSWCA 104 Woodlawn Capital Pty Limited v Motor Vehicles Insurance Limited [2015] NSWCA 227 Woolworths Limited v Strong (No 2) (2011) 80 NSWLR 445, [2011] NSWCA 72 Wright v Apthorpe [2020] NSWCA 300
Texts Cited:	MJ Beazley et al, Appeal and Appellate Courts in Australia and New Zealand, 2014 Lexis Nexis
Category:	Costs
Parties:	Jodie Lee (a pseudonym) (Plaintiff) Nita Dhupar (Defendant)
Representation:	Counsel: Mr H Chiu(Plaintiff) Ms E Elbourne (Defendant) Solicitors: Slater & Gordon (Plaintiff) Avant Law (Defendant)
File Number(s):	2017/284433
Publication restriction:	Order prohibiting the publication or other disclosure of any information tending to reveal the identity of the child named in the evidence in this case, the child’s mother, other family members of that child and the plaintiff’s employer.