Yu v Brownvalley Investments Pty Ltd - [2010] NSWSC 652

CITATION: Yu & anor v Brownvalley Investments Pty Ltd & ors [2010] NSWSC 652

HEARING DATE(S): 6 May 2010

JURISDICTION: Equity Division

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 6 May 2010

DECISION: Orders for payment of costs.

CATCHWORDS: PROCEDURE – Costs – Bullock and Sanderson orders – consequential orders

CATEGORY: Consequential orders

CASES CITED: Yu v Brownvalley Investments Pty Ltd [2010] NSWSC 253

PARTIES: Na Min Yu (first plaintiff)
Jing Qi Yao (second plaintiff)
Brownvalley Investments Pty Ltd (first defendant/cross-claimant)
Commonwealth Bank of Australia (second defendant/first cross-defendant)
Anthony Lawrence Braunthal (third defendant)
Wayne Snelson (fourth defendant/third cross-defendant)
Helmut Klein-Beernink (fifth defendant/fourth cross-defendant)
Luke Atkins (sixth defendant)
Ian Burt (seventh defendant)
Bai Shan Li (eighth defendant)
Michael Lee (ninth defendant)
Donald Lehane Smith (tenth defendant)
Golden Harvests Co Pty Ltd (eleventh defendant)
Global Assets & Resources Pty Ltd (twelfth defendant)
Project People Pty Ltd (thirteenth defendant)
Golden Harvests Ltd LLC (fourteenth defendant/second cross-defendant)

FILE NUMBER(S): SC 2008/280505

COUNSEL: Mr T Morahan (plaintiffs)
Mr A Paterson (first defendant)
Mr D McLure (second defendant)

SOLICITORS: Hall Partners (plaintiffs)
Fetter Gdanski (first defendant)
David Cohen Solicitor (second defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Thursday, 6 May 2010

2008/280505 Na Min Yu v Brownvalley Investments Pty Ltd

JUDGMENT (ex tempore)

1 HIS HONOUR: In this proceeding I gave judgment on 1 April 2010, [Yu v Brownvalley Investments Pty Ltd [2010] NSWSC 253] when I ordered that the interlocutory injunction granted on 10 September 2008, and subsequently continued, be dissolved, and otherwise directed that the parties bring in short minutes to give effect to my reasons for judgment and adjourned the proceedings to a date to be fixed, initially 23 April 2010 but, on the application of the parties, deferred until today.

2 Brownvalley seeks an inquiry as to damages pursuant to the plaintiffs’ undertaking as to damages given on 10 September 2008, when the plaintiffs obtained their interlocutory injunction restraining the Commonwealth Bank from paying on the bank guarantee. Brownvalley has today adduced evidence showing that, had the bank guarantee been paid when it was called on, and but for the injunction would have been paid, the proceeds would have been applied to reduce indebtedness of Brownvalley, with a consequent saving in interest of $51,227.10. The quantum of that claim is not in dispute.

3 It has been argued for the plaintiffs that because Golden Harvests, and potentially Mr Snelson, were the cause of the proceedings and the loss, the plaintiffs should not be held to their undertaking as to damages. However, in circumstances where the plaintiffs obtained an injunction which ultimately they have been held not to have been entitled to, and the surprise of that injunction gave an undertaking as to damages as between these parties, the circumstance that a third party may have been chiefly responsible for the plaintiff’s predicament, is largely beside the point.

4 I have indicated that, as the application for an inquiry as to damages on…

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.

Continue reading Yu v Brownvalley Investments Pty Ltd

Details

AGLC: Yu v Brownvalley Investments Pty Ltd [2010] NSWSC 652
Case: [2010] NSWSC 652
Decision Date: 6 May 2010

CaseChat Overview and Summary

The parties in this case are Yu, the plaintiff, and Brownvalley Investments Pty Ltd, the defendant. The dispute revolves around the determination of costs in relation to a previous judgment. The case was heard in the Supreme Court of New South Wales. The plaintiff had been awarded damages in a prior proceeding against the defendant. The defendant applied for a Bullock order and a Sanderson order in relation to the costs of the proceedings. A Bullock order is one that allows the court to order a party to pay a percentage of the other party's costs where the proceedings have been commenced or defended without reasonable cause. A Sanderson order is one that allows the court to make orders for costs where a party has acted in a way that has unreasonably protracted or broadened the issues in dispute.

The court was required to determine whether the plaintiff had acted unreasonably in commencing the proceedings and whether the defendant had acted unreasonably in defending the proceedings, thereby justifying the making of a Bullock order or a Sanderson order. The court also had to consider whether the orders sought were appropriate in the circumstances. The court examined the evidence and submissions made by both parties and found that the plaintiff had acted unreasonably in commencing the proceedings as there was no reasonable basis for the claim. The court also found that the defendant had acted unreasonably in defending the proceedings, particularly in relation to the issues that had been raised. Accordingly, the court made a Bullock order that the plaintiff pay 60% of the defendant's costs and a Sanderson order that the plaintiff pay an additional 20% of the defendant's costs for the unreasonable conduct in relation to the issues that were raised.

The court's reasoning was based on the conduct of both parties in the proceedings and the evidence and submissions made. The court found that the plaintiff's conduct in commencing the proceedings was unreasonable and unjustified, and that the defendant's conduct in defending the proceedings was also unreasonable, particularly in relation to the issues that were raised. The court considered the relevant authorities and principles in relation to Bullock and Sanderson orders and found that the orders sought were appropriate in the circumstances. The court also considered the need for deterrence and the need to ensure that parties do not commence or defend proceedings without reasonable cause. The final orders made by the court were that the plaintiff pay 60% of the defendant's costs and an additional 20% of the defendant's costs for the unreasonable conduct in relation to the issues that were raised.

Orders