Meimaropoulos v Cheum (No. 2) - [2014] NSWDC 76

District Court

New South Wales

Medium Neutral Citation: Meimaropoulos v Cheum (No. 2) [2014] NSWDC 76
Hearing dates: 27 June 2014
Decision date: 27 June 2014
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Mr S Brennan (barrister - as amicus) is excused from further attendance.
(2) The Plaintiff pay the Defendants' costs of Notice of Motion heard 3 August 2012 to vacate hearing dates of 27 and 28 August 2012, and costs thrown away by reason of vacation of hearing dates of 27 and 28 August 2012.
(3) The Plaintiff pay the Defendants' costs of 20 November 2012, 8 February 2013 and costs of Plaintiff's Notice of Motion dismissed 17 April 2013.The Plaintiff pay 25% of the Defendants' costs of the hearing.
(4) The Plaintiff pay the Defendants' costs of Notice of Motion filed 23 April 2014 and heard 27 June 2014.
(5) The costs payable by the Plaintiff to Defendant be set off against the judgment sum payable by Defendants to the Plaintiff.

Catchwords: TORT - Costs - application by unsuccessful defendants for costs of interlocutory proceedings and hearing - costs of earlier hearing vacated at the request of the plaintiff - costs of a dismissed motion brought by the plaintiff - whether an order for costs following the event should be refused pursuant to UCPR r 42.35 - whether plaintiff should pay a proportion of the defendants' costs pursuant to s 98 Civil Procedure Act 2005 (NSW)
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 60 and 98
Uniform Civil Procedure Rules 2005 (NSW), r 42.35
Cases Cited: Anglo-Cyprian Trade Agencies v Paphos Wine Industries [1951] 1 All E R 873
Arian v Nguyen [2001] NSWCA 5
Baychek v Baychek [2010] NSWSC 987
Craigcare Group Pty Ltd v Superkite Pty Ltd [2014] NSWSC 326
Ji v Firth [2013] NSWSC 148
Maestrale v Aspite [2014] NSWCA 182
Shield Mercantile Pty Ltd v Citigroup Pty Ltd [2013] NSWSC 287
Texts Cited: -
Category: Costs
Parties: Plaintiff: Antonia Meimaropoulos
First Defendant: Sorn Cheum
Second Defendant: Muy Lim Hay
Third Defendant: Heang Lay
Representation: Plaintiff: Mr S Brennan (amicus curiae)
Defendants: Mr A M Gruzman
Plaintiff: Brydens Compensation Lawyers
Defendants: Di Lizio & Associates

File Number(s): 2011/36909
Publication restriction: None

Judgment

The timetable for costs issues following judgment in these proceedings

These are proceedings for damages for personal injury after the plaintiff suffered injuries arising from the conduct of the defendants' dog. I heard the proceedings in January 2014 and gave judgment for the plaintiff on 27 March 2014 for $28,458.77.

During the hearing the defendants foreshadowed applications for costs orders under s 98 Civil Procedure Act 2005 (NSW) ("the Act") and Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") r 42.35 and requested me to reserve the issue of costs. In order 2 of my orders following judgment I reserved costs, with liberty to apply within 28 days of judgment. The plaintiff has made no application for costs orders, but the defendants by, Notice of Motion filed on…

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 Meimaropoulos v Cheum (No. 2)

Details

AGLC: Meimaropoulos v Cheum (No. 2) [2014] NSWDC 76
Case: [2014] NSWDC 76
Decision Date: 27 June 2014

CaseChat Overview and Summary

The case of Meimaropoulos v Cheum (No. 2) involved a dispute between the plaintiff, Meimaropoulos, and the defendants, Cheum. The plaintiff brought an action against the defendants, and the defendants sought costs in relation to several interlocutory proceedings and hearings. The plaintiff had previously vacated certain hearing dates, leading to the dismissal of a motion and the vacating of costs from an earlier hearing. The defendants sought an order for costs following the event, in accordance with UCPR r 42.35, and argued that the plaintiff should pay a proportion of their costs under s 98 of the Civil Procedure Act 2005 (NSW).

The court considered whether an order for costs following the event should be refused, and whether the plaintiff should pay a proportion of the defendants' costs. The court found that the plaintiff's decision to vacate certain hearing dates was unreasonable and had resulted in the dismissal of a motion. The court also found that the plaintiff should pay a proportion of the defendants' costs, as the plaintiff had acted unreasonably in relation to the interlocutory proceedings. The court noted that the costs payable by the plaintiff to the defendants should be set off against the judgment sum payable by the defendants to the plaintiff.

The court ordered that the plaintiff pay the defendants' costs of certain hearings and motions, as well as a proportion of the defendants' costs of a particular hearing. The court also ordered that the costs payable by the plaintiff to the defendants be set off against the judgment sum payable by the defendants to the plaintiff. The court excused Mr S Brennan, who appeared as an amicus, from further attendance. Overall, the court found in favour of the defendants and ordered the plaintiff to pay a significant portion of the defendants' costs.

Orders

Orders of the court

(1) Mr S Brennan (barrister - as amicus) is excused from further attendance.

(2) The Plaintiff pay the Defendants' costs of Notice of Motion heard 3 August 2012 to vacate hearing dates of 27 and 28 August 2012, and costs thrown away by reason of vacation of hearing dates of 27 and 28 August 2012.

(3) The Plaintiff pay the Defendants' costs of 20 November 2012, 8 February 2013 and costs of Plaintiff's Notice of Motion dismissed 17 April 2013.The Plaintiff pay 25% of the Defendants' costs of the hearing.

(4) The Plaintiff pay the Defendants' costs of Notice of Motion filed 23 April 2014 and heard 27 June 2014.

(5) The costs payable by the Plaintiff to Defendant be set off against the judgment sum payable by Defendants to the Plaintiff.

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.

Medium Neutral Citation:	Meimaropoulos v Cheum (No. 2) [2014] NSWDC 76
Hearing dates:	27 June 2014
Decision date:	27 June 2014
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Mr S Brennan (barrister - as amicus) is excused from further attendance. (2) The Plaintiff pay the Defendants' costs of Notice of Motion heard 3 August 2012 to vacate hearing dates of 27 and 28 August 2012, and costs thrown away by reason of vacation of hearing dates of 27 and 28 August 2012. (3) The Plaintiff pay the Defendants' costs of 20 November 2012, 8 February 2013 and costs of Plaintiff's Notice of Motion dismissed 17 April 2013.The Plaintiff pay 25% of the Defendants' costs of the hearing. (4) The Plaintiff pay the Defendants' costs of Notice of Motion filed 23 April 2014 and heard 27 June 2014. (5) The costs payable by the Plaintiff to Defendant be set off against the judgment sum payable by Defendants to the Plaintiff.
Catchwords:	TORT - Costs - application by unsuccessful defendants for costs of interlocutory proceedings and hearing - costs of earlier hearing vacated at the request of the plaintiff - costs of a dismissed motion brought by the plaintiff - whether an order for costs following the event should be refused pursuant to UCPR r 42.35 - whether plaintiff should pay a proportion of the defendants' costs pursuant to s 98 Civil Procedure Act 2005 (NSW)
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56, 60 and 98 Uniform Civil Procedure Rules 2005 (NSW), r 42.35
Cases Cited:	Anglo-Cyprian Trade Agencies v Paphos Wine Industries [1951] 1 All E R 873 Arian v Nguyen [2001] NSWCA 5 Baychek v Baychek [2010] NSWSC 987 Craigcare Group Pty Ltd v Superkite Pty Ltd [2014] NSWSC 326 Ji v Firth [2013] NSWSC 148 Maestrale v Aspite [2014] NSWCA 182 Shield Mercantile Pty Ltd v Citigroup Pty Ltd [2013] NSWSC 287
Texts Cited:	-
Category:	Costs
Parties:	Plaintiff: Antonia Meimaropoulos First Defendant: Sorn Cheum Second Defendant: Muy Lim Hay Third Defendant: Heang Lay
Representation:	Plaintiff: Mr S Brennan (amicus curiae) Defendants: Mr A M Gruzman Plaintiff: Brydens Compensation Lawyers Defendants: Di Lizio & Associates
File Number(s):	2011/36909
Publication restriction:	None