Trieu v Rook Cmit Pty Ltd (Costs)

[2024] NSWSC 304

Supreme Court

New South Wales

Medium Neutral Citation:

Trieu v ROOK CMIT Pty Ltd (Costs) [2024] NSWSC 304

Hearing dates:

On the papers

Date of orders:

26 March 2024

Decision date:

26 March 2024

Jurisdiction:

Common Law

Before:

Schmidt AJ

Decision:

Mr Trieu bear the defendants’ costs of the motions on an indemnity basis.

Catchwords:

COSTS – indemnity costs – where plaintiff was self-represented at hearing of notices of motion – whether relevant misconduct in the proceedings warranting indemnity costs order established –unreasonableness of plaintiff’s application for summary judgment and resistance of defendants’ application for leave to amend defence and file a cross claim contrary to obligations under the Civil Procedure Act2005 (NSW) warrants indemnity costs order –– costs ordered on indemnity basis

Legislation Cited:

Civil Procedure Act2005 (NSW), ss 56-58, 98

Uniform Civil Procedure Rules 2005 (NSW), Pt 42

Cases Cited:

Cabport Pty Ltd v Marinchek (No 2) [2013] NSWCA 131

Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225

Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397

Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25

Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11

Trieu v ROOK CMIT Pty Ltd [2024] NSWSC 122

Category:

Costs

Parties:

Phuoc Trieu (Plaintiff)
ROOK CMIT Pty Ltd (First Defendant)
Robert Rook (Second Defendant)

Representation:

Counsel:
S Reuben (Plaintiff)
P Tiliakos (Defendants)

Solicitors:
Hunt & Hunt Lawyers (Plaintiff)
Winterkorn Legal Group (Defendants)

File Number(s):

2023/103713

Publication restriction:

Nil

JUDGMENT

1. In February 2024, I gave judgment in this matter, dismissing Mr Trieu’s notice of motion for summary judgment and granting the defendants leave to file an amended defence and cross claim: Trieu v ROOK CMIT Pty Ltd [2024] NSWSC 122. This judgment deals with the remaining dispute about the costs of the motions.

2. Mr Trieu appeared unrepresented at the hearing of the motions, but his costs submissions were advanced by counsel.

Issues

3. There was no issue about the Court’s discretion in relation to costs: s 98 of the Civil Procedure Act2005 (NSW) and Pt 42 of the Uniform Civil Procedure Rules 2005 (NSW). Its powers must be exercised judicially having regard to relevant facts connected with or leading to the litigation, the purpose of an order for costs being compensatory: Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25 at [24].

4. The discretion must also be exercised in light of the requirements of ss 56-58 of the Civil Procedure Act and their emphasis on the role to be played in the exercise of the Court’s discretions of the overriding purpose specified in s 56, namely, the just, quick and cheap resolution of the real issues in the proceedings. Attention must also be paid to the parties’ adherence to their obligations under that section, when the Court is determining what the dictates of justice require: s 57(2).

5. As the unsuccessful party, Mr Trieu conceded that he has to pay the defendants’ costs of the motions. What is in dispute is the basis on which those costs are to be paid, he disputing that his conduct warrants the indemnity costs order which the defendants seek.

6. A departure from the usual costs order under the Rules, that costs follow the event, can be ordered in the event of relevant misconduct in the proceedings: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [69]. An indemnity costs order can be ordered to compensate the successful party where it was unreasonable for the unsuccessful party to have subjected the successful party to the costs incurred and where there was relevant delinquency: Cabport Pty Ltd v Marinchek (No 2) [2013] NSWCA 131 at [6]. I am satisfied that this is such a case.

Mr Trieu’s motion

7. The defendants contend that Mr Trieu’s application for summary judgment satisfied the applicable principles for departure from the usual costs order, given that what he pursued by his motion was hopeless and doomed to fail from the start. This they had raised with him in correspondence before the hearing, for reasons there explained by reference to his statement of claim and still he pursued his hopeless claim, refusing even to read their submissions.

8. Mr Trieu’s unsuccessful application for summary judgment thus warranted an indemnity costs order given that:

1. he failed to address the principles which govern applications for summary judgment, which evidenced that his application was made on a clear misunderstanding of the law and its application to his motion;

2. the pleadings raised significant disputes about the facts, law and credit, which made his application for summary judgment not only hopeless, but unreasonable; and

3. the manner in which he pleaded his case, adduced extensive evidence and raised very serious allegations in submissions, made it impossible for the Court to conclude that summary judgment could be entered.

9. Mr Trieu disputed this, his case being that there was nothing in the February judgment which indicated that there had been any kind of misconduct on his part justifying the indemnity costs order sought. It was accepted that the arguments he had advanced had concerned the possession of the property which he sought, which turned on the disputed exercise of an option, raised by his statement of claim and about which he had led evidence at the hearing of the motion.

10. It was relevant that no application had earlier been made to strike out his statement of claim and that he was a litigant in person who had admittedly failed to confine himself to the real issue at the hearing of his motion. But still, it was argued, all that he had unsuccessfully pursued did not warrant a departure from the usual order.

11. Reliance was placed on Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 401 where Woodward J explained that an indemnity costs order would be made “where the applicant, properly advised, should have known he had no chance of success”. But this was not such a case.

12. Mr Trieu thus contended that he had unsuccessfully advanced his case in support of his motion on the basis of the orders for possession to which he believed he was entitled. It followed that the defendants were entitled to a costs order on the ordinary basis. But an indemnity costs order was not warranted, his approach not having involved relevant misconduct.

13. Despite the case so put, I am satisfied that a proper basis for departure from the usual order was established by Mr Trieu’s approach to the hearing of his motion.

14. That does not turn on problems with the pleading of his statement of claim, or the evidence which he advanced. But rather on his failure, at the hearing, to attempt to establish any proper basis on which it could be concluded that the defendants could justly be deprived of an opportunity to defend his claims, given the applicable principles. The issues raised by his pleadings, given the very serious allegations which he there advanced against the defendants, could not conceivably permit entry of the summary judgment which he sought. Yet, he persisted in pressing his case, despite having failed to read the defence submissions before the hearing, to respond to them at the hearing, or to explain how the applicable principles permitted the orders he sought to be made.

15. The respective cases standing as they did at the hearing, there was no conceivable basis on which Mr Trieu’s belief that his case was overwhelming could have properly been advanced or accepted as providing a basis for the orders he sought, without a hearing on the merits.

16. That Mr Trieu was unrepresented undoubtedly helps explain his failure to accept the problems with the case he sought to pursue by his motion, despite them being raised with him before the hearing.

17. But having been put on notice of them, he still pursued his entirely untenable claim for summary judgment, seemingly without even considering the applicable principles and then failing to address them when advancing his case at the hearing. This is despite the onus falling on him to make out his case and the obligations imposed on all parties by the Civil Procedure Act, in relation to the just, quick and cheap resolution of the real issues in the proceedings.

18. These circumstances, in my view, must result in the conclusion that a just basis for an indemnity costs order in favour of the defendants has been established, the course Mr Trieu persisted in pursuing involving relevant misconduct in the proceedings.

The second motion

19. The defendants also sought an indemnity costs order in respect of their successful motion, which resulted in the grant of leave to amend their defence and bring a cross claim.

20. They contended that their motion was only brought about by Mr Trieu’s delinquency and unreasonableness, given the way his statement of claim was pleaded and his later refusal to provide particulars of his claim, which should have been pleaded. His lack of response to requests for particulars of the claims he advanced resulted in the defence application for leave to amend its defence and bring a cross claim only being able to be made after service of his evidence. He had also then unreasonably refused to consent to their application.

21. In his 14 November 2023 affidavit, Mr Winterkorn, the defendants’ solicitor, deposed to the service of the draft amended defence and cross claim and the consent sought to its filing. That was not forthcoming and the defendants’ motion was unsuccessfully opposed at the hearing, where their written submissions, which Mr Trieu refused to read and so did not address in his submissions, were received and considered: February judgment at [4]-[27]. This all warranted an indemnity costs order on their motion.

22. Mr Trieu’s case was that this still did not warrant a departure from the usual costs rules. I disagree.

23. Unlike what was discussed in Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 233, I do not accept that Mr Trieu’s tactics in relation to the provision of the particulars of his claim or his resistance of the defence motion were fair or accorded with the obligations imposed on parties in respect of the overriding purpose specified in the Civil Procedure Act, ensuring the just, quick and cheap resolution of the real issues in the proceedings.

24. In the result, I also accept that Mr Trieu engaged in further relevant misconduct warranting an indemnity costs order in favour of the defendants on their motion.

Orders

25. Mr Trieu believes that his case is overwhelming. He may eventually be proven correct. But he, like all parties, must conduct his case in accordance with the Rules and the obligations imposed on him by the Civil Procedure Act, even when unrepresented. Departures from those obligations, when they involve misconduct in the proceedings, will result in indemnity costs orders.

26. I am satisfied this is such a case.

27. For these reasons, I order that Mr Trieu bear the defendants’ costs of the motions on an indemnity basis.

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Decision last updated: 26 March 2024