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Lu v Minter (No 4)

Lu v Minter (No 4)

Case [2022] NSWDC 127 28 April 2022

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District Court

New South Wales

Medium Neutral Citation: Lu v Minter (No 4) [2022] NSWDC 127
Hearing dates: 28 April 2022
Date of orders: 28 April 2022
Decision date: 28 April 2022
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
Order:
(1) Defendants’ Notice of Motion granted; pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW) the defendants’ costs of the proceedings are to be assessed as a specified gross sum in the sum of $49,000.
(2) Defendants are to provide a copy of the judgment to the plaintiff at the address for service nominated by her earlier affidavit material, namely [redacted], and the email addresses [redacted].

Catchwords:
COSTS - proceedings summarily dismissed - application for a specified gross sum costs order pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW)

Legislation Cited:
Civil Procedure Act 2005 (NSW) s 98
Civil Procedure Act 2005 (NSW) ss 56 – 62
Defamation Act 2005 (NSW) s 23
Uniform Civil Procedure Rules 2005 (“UCPR”) rr 4.5 and 42.1

Cases Cited:
Aboriginal Group Training (WA) v PEEDAC Pty Ltd [2004] WASC 51
Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 39
Bi v Mourad [2010] NSWCA 17
Bobb v Wombat Securities Pty Ltd & Ors(No 2) [2013] NSWSC 863
Dye v Commonwealth Securities Limited (No 2) [2012] FCA 407
Dyer v Chrysanthou(No 3) (Costs) [2021] FCA 642
Fairfax Radio Network Pty Ltd v Printlane Pty Ltd (No. 2) [2011] NSWDC 121
Griffith v Australian Broadcasting Corporation (No 2) [2011] NSWCA 142
Hamod v New South Wales [2011] NSWCA 375
In the matter of optimisation Australia Pty Ltd (Costs) [2018] NSWSC 280
James v Australia and New Zealand Banking Group Ltd [2017] NSWCA 84
Jones v Sutton (No 2) [2005] NSWCA 203
Kostov v Zhang; Kostov v Fairfax Media Publications Pty Ltd [2017] NSWDC 7
Lu v Minter (No.3) (District Court (NSW), 12 August 2021, unrep
Matthews v Pigram [2020] NSWDC 526
McGuirk v University of New South Wales [2010] NSWCA 104
Michail v Mount Druitt and Area Community Legal Centre Inc [2015] NSWCA 396
Ritter v Godfrey [1920] 2 KB 47
Sheen v Burke [1993] 1 VR 584
Troiano v Voci [2019] VSC 859

Texts Cited:
“Report of the Law Reform Commission on Defamation” (LRC 13, 1971)
Brian Walters SC, “Slapping on the Writs”, University of NSW Press, 2003
Gatley on Libel and Slander

Category: Costs
Parties:
Plaintiff:
Min Lu
Defendants:
1st Defendant: Rick Minter
2nd Defendant: Bronwyn Greene
3rd Defendant: Tara Murphy
4th Defendant: Felix Ter Chian Tan
5th Defendant: Lemuria Carter
6th Defendant: Paul Ajnas
7th Defendant: Yenni Tim
Representation:
Counsel:
Defendants: Mr T Senior
Solicitors:
Defendants: Banki Haddock Fiora

File Number(s): 2020/00279718

Judgment

The application before the court

On 20 October 2021, I made orders for the summary dismissal of these proceedings and reserved the issue of costs, with liberty to apply: Lu v Minter (No.3) (District Court (NSW), 20 October 2021, unrep.
Pursuant to the leave granted in that judgment, this…

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 Lu v Minter (No 4)

Details

AGLC: Lu v Minter (No 4) [2022] NSWDC 127
Case: [2022] NSWDC 127
Decision Date: 28 April 2022

CaseChat Overview and Summary

Lu, a plaintiff, sought to challenge the summary dismissal of her proceedings against Minter, the defendant. The proceedings were dismissed without a hearing, and Lu sought an order for specified gross sum costs pursuant to section 98(4)(c) of the Civil Procedure Act 2005 (NSW). The court was required to determine whether the dismissal of the proceedings was justified and, if so, the appropriate amount of costs to award under the statute.

The court found that the proceedings were properly dismissed as they were frivolous or vexatious, and therefore the defendant was entitled to the specified gross sum costs under section 98(4)(c) of the Civil Procedure Act 2005 (NSW). The court considered the nature of the proceedings, the conduct of the plaintiff, and the overall circumstances of the case in determining the appropriate amount of costs. The court considered the defendant's costs to be reasonable and fair, and awarded a specified gross sum of $49,000.

The court ordered that the defendant's Notice of Motion be granted, and that the defendant's costs of the proceedings be assessed as a specified gross sum in the sum of $49,000. The court also ordered that the defendant provide a copy of the judgment to the plaintiff at the address for service nominated by her earlier affidavit material, namely [redacted], and the email addresses [redacted].

Orders

Orders of the court

Order:

(1) Defendants’ Notice of Motion granted; pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW) the defendants’ costs of the proceedings are to be assessed as a specified gross sum in the sum of $49,000.

(2) Defendants are to provide a copy of the judgment to the plaintiff at the address for service nominated by her earlier affidavit material, namely [redacted], and the email addresses [redacted].

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

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Citations

AGLC Citation

Lu v Minter (No 4) [2022] NSWDC 127

Most Recent Citation

Lu v University of New South Wales (No 2) [2022] FCA 1010

Cases citing this decision · 2 of 2 shown

Lu v University of New South Wales (No 2)
[2022] FCA 1010 Para 2

…eclined to do so and left the courtroom despite being warned that, if she left, the hearing would continue in her absence: Lu v Minter (No 4) [2022] NSWDC 127. The complaint to the AHRC…
Huang v Muse Beauty Salon Waterloo Pty Ltd (No 5); Muse Beauty Salon Waterloo Pty Ltd v Huang (No 5)
[2022] NSWDC 248 Para 45

…In relation to the claim for an order for lump sum costs, the principles applicable were recently set out by Judge Gibson in Lu v Minter (No 4) [2022] NSWDC 127 at [23] and following.…

View all 2 citing cases →

Cases cited in this decision · 21 of 23 shown

Ahern v Aon Risk Services Australia Ltd (No 2)
[2022] NSWCA 39 Para 23

…The principles governing specified gross sum costs orders have recently been considered in Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 39 as follows:…
Dyer v Chrysanthou (No 3) (Costs)
[2021] FCA 642 Para 5

…see for example Tim Yeo MP v Times Newspapers Limited [2015] EWHC 209) and defamation costs can be eye-watering (in Dyer v Chrysanthou (No 3) (Costs) [2021] FCA 642, the costs of an interlocutory motion totalled $430,000). The likelihood is that the plaintiff’s contribution to the assessment process would be simi…
Matthews v Pigram
[2020] NSWDC 526 Para 38

…lation to non-defamation actions ( Fairfax Radio Network Pty Ltd v Printlane Pty Ltd (No. 2) ) but also in defamation proceedings ( Matthews v Pigram [2020] NSWDC 526). Costs estimates are commonly provided in applications for security for costs and I am aware of the costs of interlocutory proceedings in this court…
Troiano v Voci
[2019] VSC 859 Para 17

…roviding those addresses. This is to ensure litigants cannot misuse the court’s process by hiding their true place of residence: Troiano v Voci [2019] VSC 859; Kostov v Zhang; Kostov v Fairfax Media Publications Pty Ltd [2017] NSWDC 7; Aboriginal Group Training (WA) v PEEDAC Pty Ltd [2004] WASC 51; Sheen v Burke…
In the matter of Optimisation Australia Pty Ltd (Costs)
[2018] NSWSC 280 Para 27

…a similar approach in the Supreme Court, as Brereton J (as his Honour then was) noted in In the matter of optimisation Australia Pty Ltd (Costs) [2018] NSWSC 280 at [29]. Gross costs orders are now widely accepted as being appropriate where the costs in question are within a fairly modest parameters, as is the cas…
James v Australia and New Zealand Banking Group Ltd
[2017] NSWCA 84 Para 25

…a contested costs assessment process: Hamod v New South Wales [2011] NSWCA 375 at [816] - [817]; James v Australia and New Zealand Banking Group Ltd [2017] NSWCA 84 at [3].…
Bechara trading as Bechara and Company v Bates
[2016] NSWCA 294 Para 2

…it can assess such as some from the available materials in a manner which is fair between the parties: Bechara trading as Bechara and Company v Bates [2016] NSWCA 294.…
eInduct Systems Pty Ltd v 3D Safety Services Pty Ltd (No 2)
[2015] NSWCA 422 Para 30

…liability”: Hamod at [816]; see also Kostov v Zhang (No 2) [2016] NSWCA 279 at [22]; eInduct Systems Pty Ltd v 3D Safety Services Pty Ltd (No 2) [2015] NSWCA 422 at [30]. 17 The power to award a gross sum should only be exercised when the Court considers that it can do so fairly between the parties and where an ap…
Michail v Mount Druitt and Area Community Legal Centre Inc
[2015] NSWCA 396 Para 5

…her that if she left I would continue to deal with the costs application in her absence: Michail v Mount Druitt and Area Community Legal Centre Inc [2015] NSWCA 396.…
Penson v Titan National Pty Ltd (No 3)
[2015] NSWCA 121 Para 7

…ried out in a formal costs assessment would defeat the purpose of the order: Harrison v Schipp at 743; Penson v Titan National Pty Ltd (No 3) [2015] NSWCA 121 at [7]. The costs ordered should be “based on an informed assessment of the actual costs having regard to the information before the court (for example, by r…
Bobb v Wombat Securities Pty Ltd (No 2)
[2013] NSWSC 863 Para 28

…ve been as generous as the court. This is sometimes referred to as the “ Bobb v Wombat ” discount ( Bobb v Wombat Securities Pty Ltd & Ors (No 2) [2013] NSWSC 863).…
Dye v Commonwealth Securities Limited (No 2)
[2012] FCA 407 Para 13

…the defendants in this court of the opportunity to have their application for costs in this court heard: Dye v Commonwealth Securities Limited (No 2) [2012] FCA 407.…
Hamod v New South Wales
[2011] NSWCA 375 Para 25

…sum costs order is to avoid the expense, delay and aggravation likely to be involved in a contested costs assessment process: Hamod v New South Wales [2011] NSWCA 375 at [816] - [817]; James v Australia and New Zealand Banking Group Ltd [2017] NSWCA 84 at [3].…
Fairfax Radio Network Pty Ltd v Printlane Pty Ltd (No. 2)
[2011] NSWDC 121 Para 27

…ant in person or failed to attend, have been made on an increasingly common basis since Fairfax Radio Network Pty Ltd v Printlane Pty Ltd (No. 2) [2011] NSWDC 121. The willingness of inferior courts to make such orders has been accompanied by a similar approach in the Supreme Court, as Brereton J (as his Honour the…
Rahman v Riordan
[2011] NSWCA 142 Para 1

…erndale MR). These policy considerations and issues were referred to in Griffith v Australian Broadcasting Corporation (No 2) [2011] NSWCA 142, where a plaintiff who succeeded on a justification defence (but lost the action) was nevertheless refused the substantial costs ($300,000) of successfully defeating the jus…
McGuirk v University of New South Wales
[2010] NSWCA 104 Para 3

…administrative staff. Courts have long struggled with the best way to deal with such correspondence; in McGuirk v University of New South Wales [2010] NSWCA 104, the NSW Court of Appeal was not prepared to sanction a litigant in person who sent voluminous, bizarre and threatening correspondence (at [12] – [14] (per…
Bi v Mourad
[2010] NSWCA 17 Para 1

…be brought without merit (as “SLAPP suits” or “stop writs”), particularly when the plaintiff is a “reluctant gladiator” ( Bi v Mourad [2010] NSWCA 17), has long been the subject of concern: “Report of the Law Reform Commission on Defamation” (LRC 13, 1971); Brian Walters SC, “Slapping on the Writs”, University of…
Jones v Sutton (No 2)
[2005] NSWCA 203 Para 4

…t of costs where the conduct of the successful party or disproportion between the claim and the result render this appropriate: Jones v Sutton (No 2) [2005] NSWCA 203. Where the costs of the assessment would be disproportionate to the merits of the litigation, that is a relevant factor to take into account.…
Aboriginal Group Training (WA) v PEEDAC Pty Ltd
[2004] WASC 51 Para 17

…oci [2019] VSC 859; Kostov v Zhang; Kostov v Fairfax Media Publications Pty Ltd [2017] NSWDC 7; Aboriginal Group Training (WA) v PEEDAC Pty Ltd [2004] WASC 51; Sheen v Burke [1993] 1 VR 584. The plaintiff is not entitled to withhold her current address from the defendants and from the court and cannot object if,…
Harrison v Schipp
[2002] NSWCA 213

…y be exercised whenever the circumstances warrant its exercise, having regard to the scope and purpose of the provision: Harrison & Anor v Schipp [2002] NSWCA 213; 54 NSWLR 738 per Giles JA at [21]-[22]. In Harrison v Schipp , Giles JA considered that the discretion in s 98(4) may be exercised where the assessment…
[1920] 2 KB 47
[1920] 2 KB 47 Para 1

…ecessary when making costs orders against a defendant (see, for example, the 10th edition at [35.15], citing Ritter v Godfrey [1920] 2 KB 47 at 53 per Lord Sterndale MR). These policy considerations and issues were referred to in Griffith v Australian Broadcasting Corporation (No 2) [2011] NSWCA 142, where a plai…

Legislation cited in this decision · 4

Civil Procedure Act 2005 (NSW)
56, 98 3 mentions (from Para 2)
Defamation Act 2005 (TAS)
23 2 mentions (from Para 13)
Uniform Civil Procedure Rules 2005 (NSW)
4.5, 42.1 2 mentions (from Para 17)
Married Persons (Equality of Status) Act 1996 (NSW)
1 mention

Medium Neutral Citation:	Lu v Minter (No 4) [2022] NSWDC 127
Hearing dates:	28 April 2022
Date of orders:	28 April 2022
Decision date:	28 April 2022
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	Order: (1) Defendants’ Notice of Motion granted; pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW) the defendants’ costs of the proceedings are to be assessed as a specified gross sum in the sum of $49,000. (2) Defendants are to provide a copy of the judgment to the plaintiff at the address for service nominated by her earlier affidavit material, namely [redacted], and the email addresses [redacted].
Catchwords:	COSTS - proceedings summarily dismissed - application for a specified gross sum costs order pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW)
Legislation Cited:	Civil Procedure Act 2005 (NSW) s 98 Civil Procedure Act 2005 (NSW) ss 56 – 62 Defamation Act 2005 (NSW) s 23 Uniform Civil Procedure Rules 2005 (“UCPR”) rr 4.5 and 42.1
Cases Cited:	Aboriginal Group Training (WA) v PEEDAC Pty Ltd [2004] WASC 51 Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 39 Bi v Mourad [2010] NSWCA 17 Bobb v Wombat Securities Pty Ltd & Ors(No 2) [2013] NSWSC 863 Dye v Commonwealth Securities Limited (No 2) [2012] FCA 407 Dyer v Chrysanthou(No 3) (Costs) [2021] FCA 642 Fairfax Radio Network Pty Ltd v Printlane Pty Ltd (No. 2) [2011] NSWDC 121 Griffith v Australian Broadcasting Corporation (No 2) [2011] NSWCA 142 Hamod v New South Wales [2011] NSWCA 375 In the matter of optimisation Australia Pty Ltd (Costs) [2018] NSWSC 280 James v Australia and New Zealand Banking Group Ltd [2017] NSWCA 84 Jones v Sutton (No 2) [2005] NSWCA 203 Kostov v Zhang; Kostov v Fairfax Media Publications Pty Ltd [2017] NSWDC 7 Lu v Minter (No.3) (District Court (NSW), 12 August 2021, unrep Matthews v Pigram [2020] NSWDC 526 McGuirk v University of New South Wales [2010] NSWCA 104 Michail v Mount Druitt and Area Community Legal Centre Inc [2015] NSWCA 396 Ritter v Godfrey [1920] 2 KB 47 Sheen v Burke [1993] 1 VR 584 Troiano v Voci [2019] VSC 859
Texts Cited:	“Report of the Law Reform Commission on Defamation” (LRC 13, 1971) Brian Walters SC, “Slapping on the Writs”, University of NSW Press, 2003 Gatley on Libel and Slander
Category:	Costs
Parties:	Plaintiff: Min Lu Defendants: 1st Defendant: Rick Minter 2nd Defendant: Bronwyn Greene 3rd Defendant: Tara Murphy 4th Defendant: Felix Ter Chian Tan 5th Defendant: Lemuria Carter 6th Defendant: Paul Ajnas 7th Defendant: Yenni Tim
Representation:	Counsel: Defendants: Mr T Senior Solicitors: Defendants: Banki Haddock Fiora
File Number(s):	2020/00279718