Lewington v Dulyakarn (No 2)

Texts Cited: Nil

Category: Costs

Parties: Kalaynee Lewington (Plaintiff)
Nittaya Dulyakarn (Defendant)

Representation: Counsel:
A Hopkins (Plaintiff)
S Sykes (Defendant)
Solicitors:
Brander Smith McKnight (Plaintiff)
State Law Group (Defendant)

File Number(s): 2024/00209266

Publication restriction: Nil

JUDGMENT

1. On 20 June 2025, I delivered judgment in these proceedings: Lewington v Dulyakarn [2025] NSWSC 635 (Principal Judgment). This judgment assumes familiarity with and uses the same defined terms as appears in the Principal Judgment.

2. The plaintiff sought to recover $170,000 paid to the defendant. I determined that, save for the return of a $20,000 “processing fee” paid by the plaintiff to the defendant, the plaintiff’s claims failed.

3. I directed the parties to agree a form of final orders to give effect to my reasons, including as to costs, and failing agreement, provide any proposed orders and submissions to my chambers, such that any remaining issues would be determined on the papers.

4. The parties were able to substantially agree orders to give effect to my reasons, save as to costs and the accrual date of pre-judgment interest.

5. These reasons determine the appropriate costs order and the accrual date of pre-judgment interest.

Overview of parties’ positions

6. The plaintiff seeks an order for costs on the ordinary basis, or in the alternative a percentage of her costs on the ordinary basis to take into account her modest success. No percentage was specified.

7. The plaintiff submits that costs follow the event, and the relevant “event” here is judgment for the plaintiff for a monetary sum. Further, the plaintiff submits that the Court should order costs in the plaintiff’s favour for the whole of the proceeding as courts do not usually apportion costs between issues where there has been mixed success: citing Cretazzo v Lombardi (1975) 13 SASR 4 at [12] per Hogarth J; Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) (2015) 90 ALJR 270; [2015] HCA 53 at [6] per French CJ, Kiefel, Nettle and Gordon JJ; Waterman v Gerling (Costs) [2005] NSWSC 1111 at [10] per Brereton J.

8. The defendant seeks an order for costs on the ordinary basis, or in the alternative a nominal reduction of no greater than 5% of the costs payable to reflect the plaintiff’s limited success.

9. The defendant submits that costs follow the event, and the relevant “event” here is the practical result that the defendant succeeded. In support of this characterisation of the “event”, the defendant relied on Ryde Developments Pty Ltd v The Property Investors Alliance Pty Ltd (No 2) [2018] NSWCA 40 (Ryde Developments) where the Court (Beazley P, Payne JA and Barrett AJA) stated at [6]:

[6] … the general rule is that the Court is to order that costs follow the event. The “event” may be characterised in more than one way. Generally the “event” refers to the result of the claim or counterclaim, as the case may be, and may be understood as referring to the practical result of a particular claim …

10. In the alternative, the defendant submits that the issue in relation to the $20,000 processing fee is a severable and discrete issue that only took up a minimal amount of trial time. The defendant submits that if a reduction is to be made to the costs payable by the plaintiff, such a reduction should be nominal and no greater than 5%.

Relevant legal principles

11. The relevant principles in relation to costs are not in dispute.

12. Costs are in the discretion of the Court: s 98 of the Civil Procedure Act 2005 (NSW) (CPA). Costs ordinarily follow the event, unless it appears to the Court that some other order should be made: r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW).

13. The “event” may characterised in numerous ways, but generally refers to the practical result of a particular claim: see Ryde Developments at [6] per Beazley P, Payne JA and Barrett AJA; Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 at [15] per Ward, Emmett and Gleeson JJA; Australian Receivables Ltd v Tekitu Pty Ltd [2011] NSWSC 1425 at [24]-[26], [54]-[60] per Ward J.

14. Where there has been a mixed outcome, it may be appropriate to apportion costs as between different issues in the proceedings. Such an apportionment is not a mathematical exercise but depends upon matters of impression and evaluation: Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 at [38] per Beazley, Ipp and Basten JJA. The apportionment of costs ought to reflect the substance of matters and the reality of the contest: see Sydney Markets Credit Services Co-operative Ltd v Taylor (No 3) [2015] NSWSC 1236 at [32] per Slattery J; J Family Motel Group Pty Ltd v Baset Super Pty Ltd (No 2) [2024] NSWSC 1401 at [26] per Rees J.

15. Underlying both the general rule that costs follow the event, and any qualifications to the rule including apportionment where there has been a mixed outcome, is the idea that costs should be paid in a way that is fair having regard to what the Court considers the responsibility of each party for incurring the costs: *Chandrasekaran v Western Sydney Local Health District (t/*as Westmead Hospital) (No 2) [2024] NSWCA 21 at [12] per Gleeson, Leeming and Adamson JJA; Commonwealth of Australia v Gretton [2008] NSWCA 117 at [121] per Hodgson JA, Mason P and Beazley P agreeing.

Determination

16. While the plaintiff was successful in obtaining judgment for the return of $20,000, I do not regard the success on this issue as the relevant “event” in the circumstances of these proceedings. The claim was in relation to the return of a deposit, in which the plaintiff’s claims failed save for in one minor respect.

17. Accordingly, this case is one in which, in my view, the practical result of the proceedings, save for the issue of the return of $20,000, was that the plaintiff’s claims failed and the defendant succeeded.

18. In the circumstances of this case, bearing in mind the underlying principle that costs are to be fair, in my view it is appropriate to apportion costs in the exercise of the Court’s discretion.

19. I do not regard the fact that there was no pre-trial offer by the defendant to refund $20,000, and as such the proceedings had to be commenced, as providing a basis for the plaintiff to receive her costs. There is no suggestion that the plaintiff would have accepted $20,000 and not sued. The substance of the claim was for the entire $170,000. On this case the plaintiff substantially failed.

20. Looked at on a broad brush basis, I consider the appropriate order that results in costs being paid in a way that is fair having regard to the responsibility of each party for incurring the costs is that the plaintiff pay 90% of the defendant’s costs of the proceeding.

21. First, there were six issues in dispute. The hearing lasted 3 days. The defendant was successful on five of the six issues and the plaintiff was successful on one of four cascading alternatives in regard to one issue.

22. Second, the substance of the hearing was in regard to the retention of the deposit, with only minimal time spent on the issue of the return of the $20,000 processing fee.

23. Third, the sum of $20,000 awarded to the plaintiff is substantially less than the initial amount sought of $170,000.

The date for pre-judgment interest

24. Finally, the parties are not in agreement in regard to the date on which pre-judgment interest is to accrue in relation to the return of $20,000 from the defendant to the plaintiff. The plaintiff’s draft orders specified the date of accrual as 25 October 2022 whereas the defendant’s draft orders specified the date as 6 December 2022.

25. The plaintiff submits that 25 October 2022 is “first time a formal demand for repayment was made by the plaintiff through her solicitors”. The defendant did not advance any submissions in support of the 6 December 2022 accrual date.

26. Pursuant to s 100(1)(b) of the CPA, pre-judgment interest accrues “from the time the cause of action arose”. 25 October 2022 is when the plaintiff requested the return of the $170,000 deposit, including the processing fee of $20,000. 6 December 2022 is the date upon which the defendant accepted the plaintiff’s repudiation.

27. In my view, pre-judgment interest accrues from 6 December 2022 as this is the date on which the contract was at an end and the date on which the plaintiff was entitled to the return of the $20,000 processing fee.

28. The draft orders submitted by both parties dealt with pre-judgment interest as a separate order. Pursuant to the terms of s 100 of the CPA itself, pre-judgment interest is included in the judgment amount. Pre-judgment interest from 6 December 2022 to 23 July 2025 is $4,186.99. Judgment will therefore be entered for $24,186.99.

Orders

29. The orders of the Court are:

30. Judgment for the plaintiff, against the defendant, for the sum of $24,186.99.

31. The plaintiff to pay 90% of the defendant’s costs of the proceedings, on the ordinary basis, as agreed or assessed.

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Amendments

23 July 2025

Amendment to jurisdiction in coversheet.