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

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

Issues

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].
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).
As the unsuccessful party, Mr Trieu conceded that he has to pay the…

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: [2024] NSWSC 304
Decision Date: 26 March 2024

CaseChat Overview and Summary

In this matter, Trieu was self-represented and brought proceedings against Rook Cmit Pty Ltd, an Australian company. The dispute centred around a decision made by the court regarding costs and whether the plaintiff's misconduct during the proceedings warranted an indemnity costs order. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the plaintiff's conduct in the proceedings warranted an order for indemnity costs. Specifically, the court had to determine if the plaintiff's application for summary judgment and resistance to the defendant's application for leave to amend its defence and file a cross-claim constituted misconduct. The court examined the reasonableness of these actions in light of the obligations under the Civil Procedure Act 2005 (NSW).

The court found that the plaintiff's conduct was unreasonable and in breach of the obligations under the Civil Procedure Act 2005 (NSW). The plaintiff's application for summary judgment was deemed unreasonable because the plaintiff had not demonstrated that there was no real prospect of the defendant succeeding on its defence. Furthermore, the plaintiff's resistance to the defendant's application for leave to amend its defence and file a cross-claim was also found to be unreasonable. Consequently, the court ruled that the plaintiff's conduct warranted an indemnity costs order. The court awarded costs to the defendant on an indemnity basis.

Orders