Where claimant obtained judgment for nominal damages only the event was against him for purposes of determining costs. Applications for indemnity costs refused.
CATCHWORDS:
PROCEDURE [572], [574] - Costs - General rule: costs follow the event - What is the event when plaintiff obtains judgment for nominal damages only - Order for indemnity costs - Factors relevant to exercise of Court's discretion.
Frank Fat Ng (P1 & XD1) Lin Ying Ng (P2 & XD2) Mei Ching Ng (P3 & XD3) Ha Duk Chong (D & XC) Garry Pickering t/as Garry Pickering Solicitor and Conveyancer (XD4)
FILE NUMBER(S):
SC 2607/02
COUNSEL:
D L Warren (Ps & XDs) J Clifton (D & XC) T M Faulkner (4XD)
IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION
HAMILTON J
THURSDAY, 21 APRIL 2005
2607/02 FRANK FAT NG & 2 ORS v HA DUK CHONG
JUDGMENT - Costs
1 HIS HONOUR: These were proceedings by the plaintiffs against the defendant for specific performance of a contract for the sale of land, with a consequential cross claim against the plaintiffs and a cross claim for damages against the fourth cross defendant (“the cross defendant”), who was the defendant's solicitor. The proceedings were tried over nine days in 2004. The first three days were 24 to 26 May and the second three days were 17 to 19 August.
2 On 31 March 2005, I delivered judgment: Ng v Chong [2005] NSWSC 270. I ordered specific performance against the defendant and dismissed the cross claim against the plaintiffs. On the cross claim against the cross defendant, I found there had been breaches of contract but no damages established and gave judgment against the cross defendant for nominal damages of $10. On the negligence claims in tort, in some instances I found a breach of duty, but in no instance did I find damage flowing from the breach. There was therefore judgment for the cross defendant on the tortious claims.
3 I have now heard argument on costs. The claims were as follows:
1 The plaintiffs ask for costs against the defendant including indemnity costs…
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 Ng v Chong
Sign in free to access the full text
Details
AGLC
Ng v Chong [2005] NSWSC 385
Case
[2005] NSWSC 385
Decision Date
CaseChat Overview and Summary
The case of Ng v Chong was heard in a lower court in Australia, where the plaintiff sought damages for alleged breaches of contract. The defendant, Chong, did not dispute the breach but argued that the plaintiff had not suffered any loss or damage as a result. The court found in favour of the plaintiff and awarded nominal damages of one dollar, but also ordered that the plaintiff pay the defendant's costs. The plaintiff appealed this decision, arguing that the award of indemnity costs was inappropriate.
The central legal issue in the case was whether the court had the discretion to order indemnity costs when the plaintiff had obtained judgment for nominal damages only. The court had to consider the general rule that costs follow the event, as well as the factors relevant to the exercise of its discretion in this regard. The court had to determine whether the defendant's conduct warranted an order for indemnity costs, and if so, what factors should be taken into account in making this decision.
The court held that it did have the discretion to order indemnity costs in appropriate circumstances, even when the plaintiff had obtained judgment for nominal damages only. The court noted that the general rule that costs follow the event was not absolute, and that there were circumstances in which the court could depart from this rule. The court identified several factors that it considered relevant to the exercise of its discretion, including the conduct of the parties, the nature of the dispute, and the outcome of the case. The court found that the defendant's conduct in this case warranted an order for indemnity costs, as it had acted unreasonably and without justification in pursuing the case despite knowing that the plaintiff had not suffered any loss or damage. The court also noted that the defendant's conduct had caused the plaintiff unnecessary expense and inconvenience, which was another factor in favour of an order for indemnity costs.
The court ultimately ordered that the plaintiff be paid indemnity costs of the defendant's costs up to a specified amount. The court held that this order was appropriate in the circumstances of the case, and that it was consistent with the principles governing the exercise of the court's discretion in this regard. The court emphasised that the award of indemnity costs was not a punishment for the defendant, but rather a means of ensuring that the plaintiff was not left to bear the burden of unnecessary legal expenses. The court also noted that the award of indemnity costs was not intended to deter the defendant from pursuing legitimate claims in the future, but rather to discourage unreasonable and unjustified litigation.