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[2026] NSWSC 928
Supreme Court of NSW
2026-08-05
Pike J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Koh v Chhoeu (No 2) [2026] NSWSC 928
Hearing dates: On the papers (last submissions received 24 July 2026)
Date of orders: 5 August 2026
Decision date: 05 August 2026
Jurisdiction: Equity - Real Property List
Before: Pike J
Decision: Final orders made – see paragraph [26]
Catchwords: COSTS — cross-claim — whether successful cross-claimant should be deprived of part of costs because unsuccessful on some heads of damage — whether issues on cross-claim substantially overlapped with issues on statement of claim — whether outcome properly characterised as mixed — ordinary rule that costs follow the event — costs of cross-claim awarded on ordinary basis
Legislation Cited: Nil
Cases Cited: Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219
Koh v Chhoeu [2026] NSWSC 769
Texts Cited: Nil
Category: Costs
Parties: Kang Hong Koh (Plaintiff /Cross-Defendant)
Bun Choeung Chhoeu (Defendant /Cross-Claimant)
Representation: Counsel:
M Green SC / L James (Plaintiff /Cross-Defendant)
A C Harding SC / J A Norton (Defendant /Cross-Claimant)
Solicitors:
Heathcote & Associates (Plaintiff /Cross-Defendant)
Bell Partners Legal (Defendant /Cross-Claimant)
File Number(s): 2024/00299346
Publication restriction: Nil
I gave judgment in these proceedings on 3 July 2026: see Koh v Chhoeu [2026] NSWSC 769 (Primary Judgment or PJ).
These reasons assume familiarity with and contain the same definitions and abbreviations as in the Primary Judgment.
At [245] of the Primary Judgment, I directed the parties to confer to seek to agree orders, including as to costs.
That conferral occurred and agreement has now been reached on all orders save as to costs. The parties are apart on the appropriate costs order. These reasons determine that issue.
I have had the benefit of written submissions in chief and reply from both parties. Neither party sought an oral hearing.
In Margaret’s written submissions it was contended that Arthur was required to elect before orders were made as to whether he claimed liquidated damages or general damages under cll 9.3.1 or 9.3.2 of the Contract. Reference was made to what I said at [211] and following of the Primary Judgment.
It was not suggested, however, that this had any practical utility in the present case in terms of the orders to be made. The damages are the same on my analysis.
There is no dispute that Margaret should pay Arthur’s costs of Margaret’s claim as agreed or assessed on the ordinary basis.
The dispute concerns the appropriate costs order on the cross-claim. At [244] of the Primary Judgment I expressed the preliminary view that Margaret should pay Arthur’s costs of the proceedings which obviously would include the costs of the cross-claim.
Arthur embraces that position and seeks an order that Margaret pay his costs of the cross-claim as agreed or assessed on the ordinary basis.
Margaret contends that the appropriate costs order on the cross-claim is that each party is to pay their own costs of the cross-claim, or in the alternative Margaret is to pay 50% of Arthur’s costs of the cross-claim as agreed or assessed on the ordinary basis. Margaret contends that the issues on the cross claim largely overlapped with the issues on the statement of claim and insofar as Arthur claimed damages on the cross claim he failed on a number of heads of damages claimed and that these matters should be reflected in an appropriate costs order.
There was no dispute as to the relevant principles.
It is convenient to refer to what was said by Ward, Emmett and Gleeson JJA in Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 at [14]-[19]:
[14] The starting position is s 98 of the Civil Procedure Act 2005 (NSW) which provides that, subject to the rules of court, costs are in the discretion of the Court including, by whom, to whom, and to what extent costs are to be paid. Next, reference should be made to the Uniform Civil Procedure Rules 2005 (NSW) r 42.1 which provides that, if the Court makes any order as to costs, it should be in terms that costs follow the event unless the circumstances justify some other order.
[15] Depending on the nature of the litigation the “event” may be characterised in more than one way. The authorities were reviewed by Ward J in Australian Receivables Ltd v Tekitu Pty Ltd [2011] NSWSC 1425 at [24]-[26], [54]-[60]. Generally the “event” refers to the event of the claim or counterclaim, as the case may be, and may be understood as referring to the practical result of a particular claim: Windsurfing International Inc v Petit [1987] AIPC 90-441 at 37,861-37,862 (Waddell J).
[16] Here, if one looks at the appeal, the appellants were unsuccessful on liability, interest, and costs but succeeded in respect of the damages awarded. Ignoring for the moment the respondents’ success on the cross-appeal (on the failure to mitigate loss issue), the appellants were successful in reducing three components of the damages awarded, the most significant of which was a substantial reduction in the estimated profit of a Peterson machine by reducing the period of calculation from 12 to 7.5 months. In monetary terms the amount of damages assessed by the primary judge, before taking into account failure to mitigate loss, was reduced from $381,703.20 to $216,424.32: see Lovick & Son Developments Pty Ltd & Anor v Doppstadt Australia Pty Ltd & Anor (No 2) [2012] NSWSC 1579 at [39]-[40] and [349] principal reasons. However, the respondents succeeded on their cross-appeal on the failure to mitigate loss issue. As a consequence the reduction in the second respondent’s damages by one third by the primary judge was set aside. In monetary terms the appellants succeeded overall in reducing the award of damages in favour of the second respondent (Engineering) by approximately $38,000. The first respondent (Developments) was totally unsuccessful on its cross-appeal on damages.
[17] The usual circumstance in which a court will deprive the successful party of the costs relating to an issue on which the successful party lost is when that issue is clearly dominant or separable: Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15 at [64] (Campbell JA). See also Waters v PC Henderson (Australia) Pty Ltd [1994] NSWCA 338; 254 ALR 328 at 330-331 (Mahoney JA).
[18] The principles governing the making of an order as to costs so as to reflect the time taken in dealing with a particular issue in which the successful party in the proceedings or on the appeal did not succeed were reviewed by this Court in Elite Protective Service Pty Ltd & Anor v Salmon (No 2) [2007] NSWCA 373, and summarised in Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 at [38] (Beazley, Ipp and Basten JJA), as follows:
· Where there are multiple issues in a case the Court generally does not attempt to differentiate between the issues on which a party was successful and those on which it failed. Unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed: Waters v PC Henderson (Australia) Pty Ltd.
· In relation to trials it has been said that it may be appropriate to deprive a successful party of costs or a portion of the costs if the matters upon which that party was unsuccessful took up a significant part of the trial, either by way of evidence or argument: Sabah Yazgi v Permanent Custodians Limited (No 2) [2007] NSWCA 306 at [24]. A similar approach is adopted on appeal.
· If the appellant loses on a separate issue argued on the appeal which has increased the time taken in hearing the appeal, then a special order for costs may be appropriate which deprives the appellant of the costs of that issue: Sydney City Council v Geftlick & Ors (No 2) [2006] NSWCA 374 at [27].
· Whether an order contrary to the general rule that costs follow the event should be made depends on the circumstances of the case viewed against the wide discretionary powers of the court, which powers should be liberally construed: State of New South Wales v Stanley [2007] NSWCA 330 at [18] per Hislop J (with whom Beazley and Tobias JJA agreed).
· A separable issue can relate to “any disputed question of fact or law” before a court on which a party fails, notwithstanding that they are otherwise successful in terms of the ultimate outcome of the matter: James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [34].
· Where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion and mathematical precision is illusory. The exercise of the discretion depends upon matters of impression and evaluation: James v Surf Road Nominees Pty Ltd (No 2), citing Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 at 272
[19] Where there has been a mixed outcome in the proceedings, and it is appropriate to entertain the process of apportioning costs as between different issues in the proceedings, in general such an exercise will be carried out on a relatively broad brush basis, and largely as a matter of impression and evaluation by the Court: James v Surf Road Nominees Pty Ltd (No 2) at [36]; Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20 at 22. In our view, such an exercise is not warranted in the present case, particularly having regard to:
(1) the multiple sub-issues (on which there was some mixed success for each of the parties) raised by the primary issues of liability and damages; and
(2) the substantial degree of overlap between the liability issue and the failure to mitigate loss issue so far as both concerned the operation and performance of the Doppstadt shredder - that is, whether the failures of the Doppstadt shredder were due to operator error and failure to service and maintain the shredder in accordance with the Doppstadt operator manual, or because the shredder did not perform as represented by the appellants. The respondents’ success on the issues of liability and failure to mitigate was outweighed by the appellants’ success on the damages issue.
(Emphasis added.)
It is agreed between the parties that one of the orders that I should make is that there be judgment for Arthur on the cross-claim in the sum of $524,240.57. It is also not in dispute that the amount awarded is less than that claimed by Arthur. Arthur was not successful on several items he claimed.
Margaret contends that the issues on the cross-claim largely overlapped with the issues on her statement of claim. Margaret further submits that, in relation to the cross-claim, the issues on which Arthur was not successful occupied a lengthier period of the trial than other issues on the cross-claim including failure to mitigate. Approached mathematically, Margaret points out that Arthur was unsuccessful as to 87% of the amount he claimed on the cross-claim, ignoring the costs on resale. Particular emphasis was placed on Arthur’s unsuccessful claim to recover interest on amounts he was required to pay his ex-wife and associated legal costs.
Arthur contended that there was no reason to depart from the usual rule that costs follow the event. Arthur was successful on his cross-claim and should have his costs. Arthur contended that each of the bases raised by Margaret was unsound and should be rejected. In particular, he submits that the issues on the cross-claim did not largely overlap with the issues on the statement of claim, and that the damages issues on which he was unsuccessful were only a subset of a subset of the claimed losses.
I am satisfied that the appropriate costs order on the cross-claim is for the cross defendant (Margaret) to pay the cross-claimant’s (Arthur) costs of the cross-claim, as agreed or assessed on the ordinary basis.
Whilst the issues on the cross-claim were related to those arising on the statement of claim, and there was a degree of overlap between them, the overlap was far from complete. Margaret propounded a case that there was no contract at all, or, if there was, it was a different contract to that propounded by Arthur which she contended she validly rescinded. Arthur’s claim on the cross-claim was that he validly rescinded the contract for which he contended and was entitled to damages.
Arthur succeeded in both defeating Margaret’s claim and making good his cross-claim. The existence of some overlap between the issues does not provide a basis for there being no order as to costs of the cross-claim. It was clearly not complete overlap and Arthur was successful on both. He should therefore have his costs.
The real issue is whether there is any basis to deprive Arthur of some of his costs on account of the fact that he did not recover all of the damages that he sought.
In my view, there is no basis.
Arthur was successful in recovering substantial damages on the cross claim.
It is not accurate to describe the outcome as a mixed outcome.
The issues on which Arthur was unsuccessful did not, to my mind, occupy such a significant proportion of the hearing so as to warrant separating them out for the purposes of a costs order. Whilst the particular issue of the interest on the money he was required to pay his ex-wife, and associated legal costs, was probably the most significant of the issues on which Arthur lost, and a separate application was made during the course of the hearing in relation to those items, Arthur’s loss on this issue is not such as to deprive him of all of his costs on the cross claim. The issue was not sufficiently significant to provide a basis for depriving Arthur of all of his costs.
The mathematical analysis performed by Margaret does not provide a sound basis to deprive Arthur of some of his costs. The issues on which Arthur was not successful were quite minor in the whole scheme of the hearing.
For the reasons set out above, the Court makes the following declarations and orders:
Judgment for the defendant on the plaintiff’s claim.
Plaintiff to pay the defendant’s costs of the plaintiff’s claim as agreed or assessed on the ordinary basis.
Declare that on 12 September 2024 the cross-claimant validly terminated the contract for sale of the property at XX River Avenue, Chatswood West NSW 2067.
Judgment for the cross-claimant on the cross-claim in the sum of $524,240.57 (including $80,235.57 in interest calculated to 5 August 2026).
Declare that defendant/cross-claimant is entitled to be paid from the trust account of Kim & Associates the sum of $160,000 currently held by that firm on trust pending the outcome of these proceedings.
Cross-defendant to pay the cross-claimant’s costs of the cross-claim as agreed or assessed on the ordinary basis.
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Koh
Chhoeu (No 2)