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Park v Choi (No. 2)

Park v Choi (No. 2)

Case [2020] NSWDC 109 15 April 2020

Costs

Appeal

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Civil Litigation & Procedure

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: Park v Choi (No. 2) [2020] NSWDC 109
Hearing dates: On the papers
Date of orders: 15 April 2020
Decision date: 15 April 2020
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) The plaintiff pay the defendants’ wasted costs in addressing the amended statement of claim filed on 7 June 2019 and the further amended statement of claim filed on 19 July 2019 (including the defendants’ costs of and occasioned by the hearings on 20 June and 17 October 2019), payable forthwith.
(2) The plaintiff pay the defendants’ costs of this application on the same basis.

Catchwords: COSTS – application to amend pleadings – multiple iterations of proposed pleading served by plaintiff – no exception to general rule that amending party is obliged to pay the other party’s costs thrown away by reason of the amendment – whether costs ought be payable forthwith – plaintiff maintained appropriateness of pleading despite detailed objections – plaintiff subsequently radically altered pleading – order made requiring costs to be paid forthwith
Legislation Cited: Supreme Court Rules 1970 (NSW), Pt 52A r 9(1)
Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28, 28.2, 42.1 and 42.7
Cases Cited: Andromeda v Holman (1920) 130 LT 329
Burgoine v Taylor (1878) 9 Ch D 1
Cretazzo v Lombardi [1975] 13 SASR 1
Fiduciary Ltd v Morningstar Research Pty Ltd (2002) 55 NSWLR 1; [2002] NSWSC 432
Fiduciary Ltd v Morningstar Research Pty Ltd [2004] NSWSC 664
French v McKenna (No 2) [2012] TASSC 8
Hamod & Anor v State of New South Wales & Anor [2007] NSWSC 707
Kazal v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWSC 1422
Park v Choi [2019] NSWDC 660
Ralmana Pty Ltd v BGC Contracting Pty Ltd [2016] WASC 131
Ritter v Godfrey [1920] 2 KB 47
Templar v Britton (No 3) [2014] NSWSC 802
Category: Costs
Parties: Plaintiff: Hee Yeul Park
First Defendant: Dong Hun Choi
Second Defendant: Seung Ju Hong
Third Defendant: Won Hyo Cho
Fourth Defendant: Hyun Pil Moon
Fifth Defendant: Jong Bae Park
Sixth Defendant: Beck Seon Lee
Representation:
Counsel:
Plaintiff: Mr J Manner
Defendants: Mr T Senior
Solicitors:
Plaintiff: Jacobs Legal
Defendants: MinterEllison

File Number(s): 2019/87870
Publication restriction: None

Judgment

The application before the court

The plaintiff commenced proceedings for damages for defamation for three publications by a statement of claim filed on 13 March 2019. Between April and June 2019 there was correspondence concerning the form of the imputations and on 20 June 2019 I heard the defendants’ challenges to the form and capacity of the imputations as well as an application to strike out the first matter complained on the basis that no defamatory imputation was conveyed.
As is set out in my judgment on those applications (Park v Choi [2019] NSWDC 660, 14 November 2019) at [5] – [8], the hearing on these issues had to be adjourned part-heard so that the plaintiff could replead his whole case, which by…

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 Park v Choi (No. 2)

Details

AGLC: Park v Choi (No. 2) [2020] NSWDC 109
Case: [2020] NSWDC 109
Decision Date: 15 April 2020

CaseChat Overview and Summary

In the Federal Court of Australia, Park v Choi (No. 2) involved a complex dispute between the plaintiff, Park, and the defendants, Choi. The case centred around an application to amend pleadings, specifically the plaintiff's statement of claim, with multiple iterations of the proposed pleading being served. The court was tasked with determining the appropriate costs to be borne by the plaintiff following these amendments, as well as the timing of those costs.

The key legal issue the court needed to address was whether the plaintiff, who had maintained the appropriateness of their pleadings despite detailed objections, should be required to pay the defendants' costs immediately, given the radical alteration of the pleadings. This was a matter of interpreting the general rule that the party seeking to amend pleadings is obliged to pay the costs thrown away by the reason of the amendment. The court had to consider the extent to which the amendments were justified and whether the plaintiff's persistence in their position warranted immediate costs.

The court found that despite the plaintiff's insistence on the appropriateness of their pleadings, the multiple amendments were excessive and unjustified. The court concluded that the plaintiff should be required to pay the defendants' costs immediately, including those related to addressing the amended statements of claim and the hearings held. The plaintiff's insistence on their position, despite the defendants' objections, justified an order for the costs to be paid forthwith. The court emphasised the importance of ensuring that such amendments are not used as a tactic to delay or obfuscate the proceedings unnecessarily.

The final orders of the court mandated that the plaintiff pay the defendants' wasted costs in addressing the amended statements of claim, as well as the costs of the hearings. Additionally, the plaintiff was required to pay the defendants' costs of the application itself, all payable forthwith. This ruling underscored the court's commitment to ensuring that procedural amendments are reasonable and that parties do not use such amendments to unduly burden their opponents.

Orders

Orders of the court

(1) The plaintiff pay the defendants’ wasted costs in addressing the amended statement of claim filed on 7 June 2019 and the further amended statement of claim filed on 19 July 2019 (including the defendants’ costs of and occasioned by the hearings on 20 June and 17 October 2019), payable forthwith.

(2) The plaintiff pay the defendants’ costs of this application on the same basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Park v Choi (No. 2) [2020] NSWDC 109

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Cases cited in this decision · 10 of 10 shown

Park v Choi
[2019] NSWDC 660 Para 2

…As is set out in my judgment on those applications ( Park v Choi [2019] NSWDC 660, 14 November 2019) at [5] – [8], the hearing on these issues had to be adjourned part-heard so that the plaintiff could replead his whole case, which by that stage had increased to include four publications. Although some of the error…
Ralmana Pty Ltd v BGC Contracting Pty Ltd
[2016] WASC 131 Para 29

…In Ralmana Pty Ltd v BGC Contracting Pty Ltd [2016] WASC 131, Kenneth Martin J, in the course of determining an application for indemnity costs on an application with a very similar history, made the following observations:…
Kazal v Fairfax Media Publications Pty Ltd (No 2)
[2015] NSWSC 1422 Para 21

…ing party is obliged to pay the other party’s costs thrown away by reason of such amendments (see Kazal v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWSC 1422 (“ Kazal ”) at [21]). Given the plaintiff was granted leave to amend his pleading in relation to each of the pleaded publications (i.e. publications 1…
Templar v Britton (No 3)
[2014] NSWSC 802 Para 40

…essed forthwith are relatively common in defamation actions, although such orders are made sparingly; as McCallum J noted in Templar v Britton (No 3) [2014] NSWSC 802 at [3], the decision most often cited in support of such an application is Fiduciary Ltd v Morningstar Research Pty Ltd (2002) 55 NSWLR 1; [2002] NSW…
French v McKenna (No 2)
[2012] TASSC 8 Para 37

…of the term “thrown away” is lost in the mists of time, but its meaning is literally what it says. As Holt AsJ states in French v McKenna (No 2) [2012] TASSC 8 at [5], the leading case is Burgoine v Taylor (1878) 9 Ch D 1, where Jessel MR said (at 4 – 5):…
Hamod v New South Wales
[2007] NSWSC 707 Para 41

…These principles are summarised in the decision of Simpson J in Hamod & Anor v State of New South Wales & Anor [2007] NSWSC 707 at [5], where her Honour additionally sets out the history of the provision and relevant caselaw, noting that these are collected in (now defunct) Ritchie: Supreme Court Procedure NSW at 3…
Fiduciary Ltd v Morningstar Research Pty Ltd
[2004] NSWSC 664 Para 46

…were simply a step along the way to the final resolution of the proceeding””, citing Austin J in Fiduciary Ltd v Morningstar Research Pty Ltd [2004] NSWSC 664 at [172]. It is certainly the case that Austin J made this observation, although in passing and whilst considering other bases for an order for immediate ass…
Fiduciary Ltd v Morningstar Research Pty Ltd
[2002] NSWSC 432

…“In Fiduciary Ltd v Morningstar Research Pty Ltd [2002] NSWSC 432; 55 NSWLR 1, Barrett J, at 4-5, identified the relevant factors that were relevant to the Court’s power to make an order that costs be payable forthwith, by reference to Pt 52A, r 9(1) of the Supreme Court Rules 1970 (NSW) (the statutory predec…
Quancorp Pty Ltd v MacDonald
[1999] WASCA 101

…demnity costs in relation to the outcome of this application. I would respectfully adopt what was said by Wheeler J in Quancorp Pty Ltd v MacDonald [1999] WASCA 101 [7] (adopted by the Court of Appeal in Swansdale), that 'where a party has by its conduct unnecessarily increased the cost of litigation, it is appropr…
[1920] 2 KB 47
[1920] 2 KB 47 Para 32

…rden as a result, and costs orders made for the plaintiff may not necessarily be the same as those made in the case of a defendant ( Ritter v Godfrey [1920] 2 KB 47 at 53 per Lord Sterndale MR). In addition, caution should be exercised in interlocutory arguments, particularly where a party can point to only parti…

Legislation cited in this decision · 2

Uniform Civil Procedure Rules 2005 (NSW)
13.4, 14.28, 28.2, 42.1, 42.7 6 mentions (from Para 6)
Supreme Court Rules 1970 (NSW)
1 mention (from Para 41)

Medium Neutral Citation:	Park v Choi (No. 2) [2020] NSWDC 109
Hearing dates:	On the papers
Date of orders:	15 April 2020
Decision date:	15 April 2020
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) The plaintiff pay the defendants’ wasted costs in addressing the amended statement of claim filed on 7 June 2019 and the further amended statement of claim filed on 19 July 2019 (including the defendants’ costs of and occasioned by the hearings on 20 June and 17 October 2019), payable forthwith. (2) The plaintiff pay the defendants’ costs of this application on the same basis.
Catchwords:	COSTS – application to amend pleadings – multiple iterations of proposed pleading served by plaintiff – no exception to general rule that amending party is obliged to pay the other party’s costs thrown away by reason of the amendment – whether costs ought be payable forthwith – plaintiff maintained appropriateness of pleading despite detailed objections – plaintiff subsequently radically altered pleading – order made requiring costs to be paid forthwith
Legislation Cited:	Supreme Court Rules 1970 (NSW), Pt 52A r 9(1) Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28, 28.2, 42.1 and 42.7
Cases Cited:	Andromeda v Holman (1920) 130 LT 329 Burgoine v Taylor (1878) 9 Ch D 1 Cretazzo v Lombardi [1975] 13 SASR 1 Fiduciary Ltd v Morningstar Research Pty Ltd (2002) 55 NSWLR 1; [2002] NSWSC 432 Fiduciary Ltd v Morningstar Research Pty Ltd [2004] NSWSC 664 French v McKenna (No 2) [2012] TASSC 8 Hamod & Anor v State of New South Wales & Anor [2007] NSWSC 707 Kazal v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWSC 1422 Park v Choi [2019] NSWDC 660 Ralmana Pty Ltd v BGC Contracting Pty Ltd [2016] WASC 131 Ritter v Godfrey [1920] 2 KB 47 Templar v Britton (No 3) [2014] NSWSC 802
Category:	Costs
Parties:	Plaintiff: Hee Yeul Park First Defendant: Dong Hun Choi Second Defendant: Seung Ju Hong Third Defendant: Won Hyo Cho Fourth Defendant: Hyun Pil Moon Fifth Defendant: Jong Bae Park Sixth Defendant: Beck Seon Lee
Representation:	Counsel: Plaintiff: Mr J Manner Defendants: Mr T Senior Solicitors: Plaintiff: Jacobs Legal Defendants: MinterEllison
File Number(s):	2019/87870
Publication restriction:	None