T & H Pty Ltd v Nguyen - [2022] NSWCA 180

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: T & H Pty Ltd v Nguyen [2022] NSWCA 180
Hearing dates: 14 September 2022
Date of orders: 15 September 2022
Decision date: 15 September 2022
Before: White JA
Kirk JA
Decision:
Application for leave to appeal dismissed with costs.

Catchwords:
APPEALS — Leave to appeal — Security for costs — Applicant conceded unable to pay costs of other side if ordered to do so — No issue of principle — No miscarriage in exercise of discretion

Legislation Cited:
District Court Act 1973 (NSW), s 127(2)(a)
Uniform Civil Procedure Rules 2005 (NSW), rr 7.1, 7.2, 20.14, 42.21

Cases Cited:
The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26
Elzahed vState of New South Wales (2018) 97 NSWLR 898; [2018] NSWCA 103
House v The King (1936) 55 CLR 499; [1936] HCA 40
Live Board Holdings Ltd v Cody Live Pty Ltd [2017] NSWCA 302
PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48
T & H Pty Limited v 304 Chapel Rd Pty Ltd [2018] NSWDC 215

Category: Procedural rulings
Parties:
Applicant:
T & H Pty Ltd
Respondents:
Linh Trinh Nguyen
Chi Thanh Trinh and Thi Bich Lien Pham
Thanh Tuan Trinh
304 Chapel Road Pty Ltd
Representation:
Advocates:

T N Nguyen (Applicant’s director)

E W Young (Respondents)

Solicitors:
Than & Co Solicitors (Respondents)

File Number(s): 2022/00118605
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Citation:

T & H Pty Limited v Nguyen [2022] NSWDC 82

Date of Decision:

25 March 2022

Before:

Gibson DCJ

File Number(s):

2018/00089247; 2018/00089265; 2018/00093528; 2018/00093529

Judgment

WHITE JA: I agree with Kirk JA.
KIRK JA: The applicant seeks leave to appeal from a decision of Judge Gibson in the District Court on 25 March 2022 in which her Honour made an order for further security for costs against the applicant. In these proceedings the sole director of the applicant, Mr The Nghiep Nguyen, sought to represent the company. The Court dispensed with the requirements of UCPR rr 7.1 and 7.2 and permitted Mr Nguyen to do so.
For the following reasons, the application for leave to appeal should be dismissed with costs.

Background

In 2018 the applicant brought four proceedings against the respondents seeking $306,795 in unpaid project and construction management services fees – two in the District Court and two in the Local Court. There is a degree of overlap between the respondents in the four sets of proceedings. No respondent was party to all four proceedings. In one of the District Court proceedings the respondents brought a cross-claim seeking damages for work negligently performed. It was not argued in the application for leave to appeal that anything turned on which proceedings a particular respondent was party to, and there is no need here to seek to distinguish between them.
Applications for security for costs were made by the respondents in all four sets of proceedings in May…

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.

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Details

Case: [2022] NSWCA 180
Decision Date: 15 September 2022

CaseChat Overview and Summary

The applicants, T & H Pty Ltd, sought leave to appeal a decision of the primary court. The respondent, Nguyen, had been awarded costs in the primary proceedings. The applicants conceded that they would be unable to pay the respondent's costs if ordered to do so, and the primary judge had ordered security for costs.

The central legal issue before the Court of Appeal was whether the primary judge had erred in exercising their discretion to order security for costs against T & H Pty Ltd. The applicants argued that the order for security for costs was an improper exercise of discretion.

The Court of Appeal found no error in the primary judge's exercise of discretion. The applicants' concession regarding their inability to pay costs was a significant factor. The Court noted that there was no issue of principle raised by the application, and therefore no miscarriage of discretion had occurred.

Consequently, the application for leave to appeal was dismissed with costs.

Orders

Orders of the court

Application for leave to appeal dismissed with costs.

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:	T & H Pty Ltd v Nguyen [2022] NSWCA 180
Hearing dates:	14 September 2022
Date of orders:	15 September 2022
Decision date:	15 September 2022
Before:	White JA Kirk JA
Decision:	Application for leave to appeal dismissed with costs.
Catchwords:	APPEALS — Leave to appeal — Security for costs — Applicant conceded unable to pay costs of other side if ordered to do so — No issue of principle — No miscarriage in exercise of discretion
Legislation Cited:	District Court Act 1973 (NSW), s 127(2)(a) Uniform Civil Procedure Rules 2005 (NSW), rr 7.1, 7.2, 20.14, 42.21
Cases Cited:	The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 Elzahed vState of New South Wales (2018) 97 NSWLR 898; [2018] NSWCA 103 House v The King (1936) 55 CLR 499; [1936] HCA 40 Live Board Holdings Ltd v Cody Live Pty Ltd [2017] NSWCA 302 PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 T & H Pty Limited v 304 Chapel Rd Pty Ltd [2018] NSWDC 215
Category:	Procedural rulings
Parties:	Applicant: T & H Pty Ltd Respondents: Linh Trinh Nguyen Chi Thanh Trinh and Thi Bich Lien Pham Thanh Tuan Trinh 304 Chapel Road Pty Ltd
Representation:	Advocates: T N Nguyen (Applicant’s director) E W Young (Respondents) Solicitors: Than & Co Solicitors (Respondents)
File Number(s):	2022/00118605
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: T & H Pty Limited v Nguyen [2022] NSWDC 82 Date of Decision: 25 March 2022 Before: Gibson DCJ File Number(s): 2018/00089247; 2018/00089265; 2018/00093528; 2018/00093529