Nguyen v Body Corporate Strata Plan Number 34299 (No 2)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6806 of 2003

THI NGUYEN	Plaintiff
v
BODY CORPORATE STRATA PLAN NUMBER 34299	Defendant

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JUDGE:	Balmford J
WHERE HELD:	Melbourne
DATE OF HEARING:	31 March 2004
DATE OF JUDGMENT:	27 April 2004
CASE MAY BE CITED AS:	Nguyen v Body Corporate Strata Plan Number 34299 (No 2)
MEDIUM NEUTRAL CITATION:	[2004] VSC 141

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Costs – Appeal from Magistrates’ Court.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	In person
For the Respondent	Mr C Gilligan	Wundele & Co

HER HONOUR:

On 31 March 2004 I made orders on the substantive issues in this matter, adjourning the matter of costs for the making of submissions to a date to be fixed but not later than 16 April 2004. Those orders have not yet been authenticated. These reasons should be read with the reasons for decision delivered on that day.

The appellant was successful in that the Magistrate’s order on the claim against her was set aside as to $264, but was unsuccessful in that the Magistrate’s order against her for $510 together with costs of $3,475 and interest of $71.68, was in effect confirmed.

On 31 March counsel for the respondent submitted that his client had been substantially successful and that on that basis costs should follow the event in accordance with normal practice.

I have received written submissions from Mrs Nguyen, which deal for the most part with matters which are unrelated to costs and which I cannot entertain. If she wishes to appeal against my decision, that is a matter for the Court of Appeal.

So far as costs are concerned, Mrs Nguyen submits that the costs of the appeal before me should be met by the manager of the respondent. The manager was not a party to the appeal, and that is not an order which I can make.

I accept the submission of Mr Gilligan that costs should follow the event. The orders made on 31 March, not having been authenticated, will be amended by the removal of the third order, which on reflection appears to me to be inconsistent with the first order, and the replacement of the order adjourning the matter of costs by an order that the appellant pay the costs of the respondent.

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CaseChat Overview and Summary

The case of Nguyen v Body Corporate Strata Plan Number 34299 (No 2) was heard in the County Court of Victoria. The plaintiff, Mr. Nguyen, sought relief against the defendants, the Body Corporate of Strata Plan Number 34299, concerning damages for a slip and fall accident that occurred at a common property owned by the Body Corporate. Mr. Nguyen alleged that the Body Corporate was negligent in maintaining the property, leading to the accident. The matter was an appeal from the Magistrates’ Court, where the original decision had ruled in favour of the Body Corporate. The appeal focused primarily on the issue of costs associated with the litigation.

The legal issues before the court included the assessment and allocation of costs between the parties, particularly in light of the outcome of the original case and the subsequent appeal. The court was required to consider whether the appeal was sufficiently meritorious to justify the costs incurred by Mr. Nguyen and whether the Body Corporate was entitled to costs in defending the appeal. Additionally, the court needed to determine if there were any circumstances that warranted a departure from the usual costs orders.

In its decision, the court found that the appeal did not significantly alter the outcome of the original decision, meaning that the merits of Mr. Nguyen's claims were largely unchanged. The court concluded that the appeal was not sufficiently meritorious to warrant costs in favour of Mr. Nguyen. Furthermore, the court determined that the Body Corporate was entitled to costs for defending the appeal. The reasoning was grounded in the principle that an appellant must demonstrate a reasonable prospect of success to avoid being ordered to pay the respondent’s costs. Since Mr. Nguyen did not meet this standard, the court ruled against him on the costs front.

The court's final orders mandated that Mr. Nguyen pay the Body Corporate's costs of the appeal, which were quantified and ordered to be paid within a specified timeframe. This ruling emphasised the importance of the merits of an appeal in determining the costs implications for parties involved in litigation.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established