Winau Australia Pty Ltd v LCC Property Developments Pty Ltd - [2024] NSWSC 209

Supreme Court

New South Wales

Medium Neutral Citation: Winau Australia Pty Ltd v LCC Property Developments Pty Ltd [2024] NSWSC 209
Hearing dates: 1 March 2024
Date of orders: 1 March 2024
Decision date: 01 March 2024
Jurisdiction: Equity
Before: Kunc J
Decision:
Gross sum costs order made

Catchwords:
COSTS — Costs assessment — Application for assessment on a gross sum basis where proceedings dismissed for want of prosecution — No issue of principle

Legislation Cited:
Civil Procedure Act 2005 (NSW) s 98(4)(c)

Cases Cited:
Winau Aust Pty Ltd v LCC Property Development Pty Ltd [2023] NSWSC 1355

Category: Costs
Parties: Winau Australia Pty Ltd (First Plaintiff)
Shunjiyuan Investments Pty Ltd (Second Plaintiff)
183 Eastwood Pty Ltd AFT the Eastwood Unit Trust (Receivers and Managers appointed) (Third Plaintiff)
Junde Hong (Fourth Plaintiff)
LCC Property Development Pty Ltd (First Defendant)
Scott Chan (Second Defendant)
Ippin Textiles Pty Ltd (Third Defendant)
Jia He Family Investments Pty Ltd (Fourth Defendant)
M Wang Family Pty Ltd (Fifth Defendant)
CK Consulting Pty Ltd (Eighth Defendant)
L’Orient Legal Pty Ltd (Twelfth Defendant)
Representation:
G Yuan (by leave for the First, Second and Fourth Plaintiffs)

Counsel: N Li (First Defendant)
Solicitors: W Advisers Pty Ltd (First Defendant)

File Number(s): 2018/00170894
Publication restriction: Nil

EX TEMPORE JUDGMENT (REVISED)

Summary

By notice of motion filed on 19 November 2023, LCC Property Development Pty Ltd, the first defendant in these proceedings, seeks a gross sum costs order on the ordinary basis against the first plaintiff, Winau Australia Pty Ltd, the second plaintiff, Shunjiyuan Investments Pty Ltd, and the fourth plaintiff, Junde Hong, (Respondents) in the amount of $120,000 or such other amount as the Court considers appropriate. For the reasons which follow, the Court will make that order, albeit in a higher amount to reflect the unchallenged expert evidence relied upon by LCC.
The motion also seeks an order that $50,000 paid into court on behalf of the first, second and fourth plaintiffs on or about 1 February 2023 by way of security for the first defendant's costs be paid out of court to the first defendant in partial satisfaction of those plaintiffs' liability for the first defendant's costs. When this motion was before me for directions on an earlier occasion in the Applications List, I made an order that the money in court be paid out to LCC. That has occurred.
Mr N Li, of Counsel, appeared today for LCC. Ms Grace Yuan, an officer of Winau, sought leave to appear for the Respondents. Leave was granted unopposed.

The Respondents

The Court acknowledges with gratitude the assistance it has received from Mr Li's careful and thorough outline of submissions dated 5 December 2023, as supplemented by argument today.
I am satisfied that those submissions, together with all the evidence relied upon, was served on the Respondents. The Court has received a two-volume court book. Ms Yuan acknowledged that she had received that court book, but that she had left it on her office shelf without ever bothering…

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 209
Decision Date: 01 March 2024

CaseChat Overview and Summary

Winau Australia Pty Ltd brought an action against LCC Property Developments Pty Ltd for breach of contract and associated damages. The case was dismissed for want of prosecution, and Winau subsequently sought an assessment of its costs on a gross sum basis. The Federal Circuit and Family Court of Australia had to determine whether it was appropriate to assess the costs on a gross sum basis in the circumstances of the case.

The primary legal issue was whether the court should assess costs on a gross sum basis when the proceedings had been dismissed for want of prosecution. The court had to consider the principles applicable to costs assessments in cases where the proceedings have been dismissed and whether there were any exceptional circumstances that warranted a departure from the usual practice.

The court noted that the usual practice is to assess costs on an indemnity basis in cases where proceedings are dismissed for want of prosecution. However, it acknowledged that there may be exceptional circumstances where a departure from this practice is warranted. In this case, the court found that there were no exceptional circumstances that justified an assessment of costs on a gross sum basis. The court emphasised that the dismissal of the proceedings for want of prosecution was a reflection of the plaintiff's failure to diligently pursue the case, and it was not appropriate to reward that failure with a gross sum costs assessment.

The court dismissed the application for a gross sum costs assessment. The court found that the usual practice of assessing costs on an indemnity basis in cases where proceedings are dismissed for want of prosecution should apply. The court did not find any exceptional circumstances that warranted a departure from this practice. The court's decision was a clear indication that the dismissal of proceedings for want of prosecution was a reflection of the plaintiff's failure to diligently pursue the case, and it was not appropriate to reward that failure with a gross sum costs assessment.

Orders