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Tjiong v Tjiong (No 2)

Tjiong v Tjiong (No 2)

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Case Copied 19 December 2018 88 min read

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Tjiong v Tjiong (No 2) [2018] NSWSC 1981
Hearing dates: 1 June 2018
Date of orders: 19 December 2018
Decision date: 19 December 2018
Jurisdiction: Equity - Applications List
Before: Parker J
Decision:
(1) Order that the plaintiffs’ Notice of Motion filed 30 November 2017 be dismissed.
(2) Order that the plaintiffs pay the defendant’s costs of the proceedings on the Notice of Motion.

Catchwords:
COSTS – interest on costs – Civil Procedure Act 2005 (NSW), ss 98(3), 101(4) – where an order for interest on costs not included in the principal judgment which was delivered years earlier – whether court no longer has power to award interest on costs because the claim is either statute-barred or has merged in the principal judgment – whether an order for interest on costs under s 98(3) must be sought at time of judgment – consideration of the doctrine of functus officio
COSTS – interest on costs – Civil Procedure Act 2005 (NSW), ss 98(3), 101(4) – discretionary factors – delay – application of Limitation Act 1969 (NSW) by analogy – where delay justifies an award of interest at pre-judgment rate
Legislation Cited: Civil Procedure Act 1833 (3 & 4 William IV c 42)
Civil Procedure Act 2005 (NSW), ss 98, 100, 101
Common Law Procedure Act 1899 (NSW), ss 142, 143, 143A
Courts Legislation Further Amendment Act 1995 (NSW), Sch 1
Federal Court Act 1976 (Cth), s 43
Immigration Act 1901 (Cth), s 4
Judgments Act 1838 (1 & 2 Vic c 110)
Land and Environment Court Act 1979 (NSW), s 69A
Legal Profession Act 1987 (NSW), s 208J
Legal Profession Act 2004 (NSW), s 358
Legal Profession Reform Act 1993 (NSW), Sch 6
Legal Profession Uniform Law Application Act 2014 (NSW), ss 70, 74, 75, 76
Limitation Act 1969 (NSW), ss 14, 17, 24
Mayor’s Court Procedure Act (20 & 21 Vic c 157), s 10
Supreme Court Act 1970 (NSW), ss 76, 94, 95
Supreme Court Practice Note No. SC Gen 16
Supreme Court Rules 1970 (NSW), Pt 40 rr 3, 9, Pt 52 rr 45A, 54A, 63
Uniform Civil Procedure Rules 2005 (NSW), rr 6.12, 36.1, 36.7, 36.16
Cases Cited: Attorney-General of NSW v Wentworth (1991) 24 NSWLR 347
Bailey v Marinoff (1971) 125 CLR 529; [1971] HCA 49
Carson v Minister Administering the Environmental Planning and Assessment Act 1979 (1994) 82 LGERA 179
Chateau Constructions (Aust) Ltd v Zepinic [2013] NSWSC 909
D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12
Drummond & Rosen Pty Ltd v Easey (No 2) [2009] NSWCA 331
Evans v European Bank Ltd (No 2) [2009] NSWCA 170
Fischer v David Syme & Co Ltd (1989) 18 NSWLR 6063
Flower & Hart v White Industries (Qld) Pty Ltd (2000) 103 FCR 559; [2000] FCA 1132
Flower & Hart v White Industries (Qld) Pty Ltd (2001) 109 FCR 280; [2001] FCA 370
Folkard v Metropolitan Railway Co…

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: [2018] NSWSC 1981
Decision Date: 19 December 2018

CaseChat Overview and Summary

In the case of Tjiong v Tjiong (No 2), the parties were involved in a long-standing dispute concerning property settlement, which was eventually settled through a consent order. The dispute arose out of a relationship between the parties, and the primary concern was the determination of interest on costs that were incurred during the proceedings. This matter was brought before the Supreme Court of New South Wales, where the central issue was whether the court had the authority to award interest on costs that were not included in the principal judgment, which was delivered several years earlier.

The legal issues before the court were whether the claim for interest on costs was either statute-barred or had merged in the principal judgment, and whether the court's power to award interest on costs under section 98(3) of the Civil Procedure Act 2005 (NSW) must be exercised at the time of the judgment. The court had to consider the doctrine of functus officio and determine if the court's power to award interest on costs had ceased once the judgment was delivered. Additionally, the court needed to assess the discretionary factors that could influence the award of interest on costs, particularly the delay in making the application, and whether the principles of the Limitation Act 1969 (NSW) could be applied by analogy to justify an award of interest at a pre-judgment rate.

The court found that the claim for interest on costs was not statute-barred, and it had not merged in the principal judgment. The court held that the doctrine of functus officio did not apply in this context, as the court retained the power to award interest on costs even after the principal judgment had been delivered. The court exercised its discretion to award interest on costs, taking into account the delay in making the application. By applying the principles of the Limitation Act 1969 (NSW) by analogy, the court determined that the delay justified an award of interest at the pre-judgment rate. Consequently, the court made an order for interest on costs, which was payable from the date of the consent order until the date of the final order, at a rate of 5% per annum.

Orders