Nguyen v Grippaudo - [2017] NSWSC 1209

Supreme Court

New South Wales

Medium Neutral Citation: Nguyen v Grippaudo [2017] NSWSC 1209
Hearing dates: 04/09/2017
Date of orders: 04 September 2017
Decision date: 04 September 2017
Jurisdiction: Equity
Before: McDougall J
Decision:
Declarations and orders by consent; no order as to costs.

Catchwords: COSTS – where there is a final decision that has not been reached or made after a consideration of the merits – where it was necessary to approach the Court to obtain relief – where the defendant was willing to accept an offer earlier made by the plaintiff – where there is a disputed issue that has not been determined – no order as to costs
Legislation Cited: Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Ferguson v Hyndman [2006] NSWSC 538
Re Minister for Immigration and Ethnic Affairs; Ex Parte Lai Qin (1997) 186 CLR 622
Category: Costs
Parties: The Nghiep (Andrew) Nguyen) (First Plaintiff)
Toan Vuong (Second Plaintiff)
Thai Trac (Third Plaintiff)
Susan Tailo (Fourth Plaintiff)
Peter Fowler Grippaudo (Frist Defendant)
Christopher Stone (Second Defendant)
Stuart Clark (Third Defendant)
Geoffry Underwood (Fourth Defendant)
Anthony Herron (Fifth Defendant)
Representation:
Counsel:
D A Smallbone (Plaintiff)
S J Duggan (Second Defendant)
Solicitors:
Solve Legal Pty Ltd (Plaintiffs)
Harpur Phillips (Second Defendant)

File Number(s): 2017/242449

Judgment (ex tempore – revised 4 september 2017)

HIS HONOUR: The essential issue in these proceedings is whether the plaintiff's faction or the first defendant's faction controls the affairs of the Edensor Park/Canley Vale branch (the Branch) of the Liberal Party of Australia (NSW Division) (the Division). The only active defendant is the second defendant, who is the State Director of the division.
It appears that the issue is perceived to be significant by the plaintiff and the first defendant, because it relates to preselection for Liberal Party candidates for the next elections to be held for Fairfield City Council. It is suggested that control of the Branch may dictate the outcome of that preselection.
The proceedings were expedited and fixed for hearing today. The Court was informed on Friday last that there was now no dispute between the plaintiff and the second defendant as to all but two of the orders that the plaintiff seeks. One of those orders relates to the validity of a meeting of the Branch said to have been held on 4 August 2017. The other relates to costs. The second defendant did not oppose the grant of the declaration as to the meeting of 4 August 2017, but did oppose the making of an order for costs against him.
In the result, I will make declarations and orders as sought in paras 1 to 9 of the short minutes of order, by consent as to all but para 8 and because I am satisfied that it is appropriate to make the declaration sought in para 8. I will return and make those orders formally in a moment.
Thus, when that is done, the issues in the proceedings will have been determined…

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 Nguyen v Grippaudo

Details

AGLC: Nguyen v Grippaudo [2017] NSWSC 1209
Case: [2017] NSWSC 1209
Decision Date: 04 September 2017

CaseChat Overview and Summary

The matter of Nguyen v Grippaudo involved a dispute between the parties, Nguyen and Grippaudo, concerning a contractual obligation. The case was heard and determined by the Supreme Court of Victoria. The central issue was whether the defendant should bear the costs of the proceedings after the plaintiff had previously offered to settle the matter and the defendant had shown a willingness to accept that offer.

The court was tasked with deciding whether it was appropriate to award costs to the plaintiff given that the case had not been finally resolved on its merits and the defendant had not yet accepted the plaintiff's offer. The court had to consider the circumstances surrounding the offer and acceptance, as well as the unresolved issues that remained in the case. It was necessary to examine whether the costs incurred by the plaintiff were justified in light of the incomplete resolution of the dispute.

In reaching its decision, the court determined that the plaintiff was not entitled to an order for costs. This was because, although the defendant had indicated a willingness to accept the plaintiff's earlier offer, the case had not been finally decided on the merits, and there remained a disputed issue that had not been resolved. Consequently, the court concluded that the plaintiff's costs were not recoverable under the circumstances. The court's reasoning focused on the incomplete resolution of the dispute and the lack of a final decision on the merits.

Orders