T & H PTY LIMITED v Nguyen; T & H PTY LIMITED trading v Trinh; T & H PTY LIMITED v Trinh; T & H PTY LIMITED v 304 Chapel Rd Pty Ltd

The contents of the Referee's Report

1. As is set out above, there are four liquidated claims. The findings of the Referee for each of these four claims is as detailed in the first and second columns below: Claim Finding by Referee Payments Made Balance Construction Management Services (Report at [187]; CB 153). $101,689.02 $160,413.84 ($55,724.82) Project Management Services (Report at [610]; CB at 216). $186,493.70 $162,239.10 $24,254.60 45 Scarborough Street, Monterey (Report at [648]; CB at 222). $43,407.89 $20,000.00 $23,407.89 10 Jones Avenue, Monterey (Report at [700]; CB at 228) $64,731.01 $30,000.00 $34,731.01 Sub-Total $396,321.62 $372,652.94 $23,668.68 cross-claim (Report at [533]; CB at 202) ($54,583.00) ($42,557.67) Total $341,738.62 ($18,888.99)

1. Excluding the cross-claim, there is a net amount owing in favour of the plaintiff of $23,668.68. When the cross-claim is added back, there is a net among owing to the defendants (before interest) of $18,888.99.

The current stage of these proceedings

1. These proceedings were commenced on the cusp of expiry of the limitation period, in 2018, and have taken a further three years of case management since that time. The referral process would ordinarily have resolved these delay problems but, unfortunately, progress since the referral has been even slower.
2. The defendants filed a Notice of Motion for adoption of the Referee's Report on 1 April 2021 (CB at 259-262). Montgomery DCJ, on 23 April 2021, was informed by the plaintiff's director that adoption of the Referee's Report was opposed. His Honour made a series of orders, including that it be fixed for hearing for 6 further days. The Judicial Registrar has not yet fixed this final hearing pending the outcome of the present Notice of Motion.
3. In his outline of submissions, Mr Freeman stated that there are no objections to the quantum findings of the Referee and has drawn my attention to a statement to this effect by Mr Nguyen in his letter to the solicitors for the defendants dated 10 February 2021 (CB at 25). This is now disputed by Mr Nguyen, who tells me that he disputes everything in the Report. He even disputed, at one stage of the application, ever being paid any money at all by the defendants.
4. Following notification of the proposed challenge to the Referee's Report, the defendants' Notice of Motion for further security for costs was filed on 8 June 2021. This Motion did not come before the court until 24 March 2022; prior dates for the hearing of this application have had to be deferred or vacated due to case management issues.
5. For the purpose of understanding his opposition to the adoption of the Report, I asked Mr Nguyen to identify the errors in it. He relied upon the list of errors set out in his affidavit of 15 April 202. I note these objections (and Mr Freeman's responses) to be as follows: 1. Proceedings 2018/93528: The Referee is asserted to have made errors totalling $82,020.66 by not considering an invoice dated 16 March 2012. 2. Mr Freeman responds by pointing out that this invoice was in fact a reissue of an earlier invoice, which was actually dated 1 February 2012 (CB at 236). This invoice had to be reissued because the plaintiff would otherwise have been time-barred, and it is for the identical work as is set out in the 16 March 2012 invoice. When this was put to Mr Nguyen he acknowledged as much. This means that the Referee did in fact consider this invoice. 3. Proceedings 2018/93529: The Referee is asserted to have made errors totalling $95,766.60 by ignoring the re-issued invoice of 16 March 2012. 4. Once again, the same explanation applies, as Mr Nguyen conceded when this was pointed out to him. 5. Proceedings 2018/89247: Once again, the Referee is asserted to have made errors totalling $71,101.86 by ignoring the re-issued invoice of 13 March 2012 and dealing only with the invoice as sent on the original date (CB at 218). 6. Mr Nguyen acknowledged, once again, that this invoice was a duplication and that he could not ask to be paid twice just because he issued two invoices, especially where the reason for the second invoice was to avoid limitation period problems. 7. Proceedings 2018/89265: Once again, the Referee is asserted to have made errors totalling $71,101.86 by ignoring the reissued invoice although it was clear the invoice in question had been considered (although only once and not twice: CB at 225). 8. Mr Nguyen acknowledged that this invoice was a duplication in the same manner as the other three double-issued invoices set out above. 9. Cash payment of $50,000: Mr Nguyen sets out, at paragraph 3(v) of his affidavit of 15 April 2021, that he "vehemently" denied receiving a cash payment of $50,000 and said that this claim amounted to "lying on oath". He asserted that the defendants had told the Referee they had made a number of cash payments and that all these claims were false. 10. However, Mr Nguyen withdrew this allegation when shown the table at CB 350, which sets out all the amounts paid to him by cheque, and when Mr Freeman reminded him that he had previously acknowledged receiving two additional amounts in cash of $20,000 and $30,000 (which are the cash payments the Referee received submissions about from both sides). Looking at the table of payments at CB 350, it is clear that the defendants do not assert there were any other payments in cash. 11. The cross-claim: Mr Nguyen challenges the basis upon which the Referee found that he was proportionately liable for sprinkler system instalment errors. 12. If the plaintiff were successful on this issue, the sum involved is around $19,000. The question in relation to the Report would be whether the plaintiff was entitled to rely upon the other parties identified as being negligent or whether he participated in the design error in question.
6. As noted above, the affidavit of 15 April 2021 was served for the purpose of explaining the basis of the plaintiff's opposition to the adoption of the Report. I am entitled to assume that, if there were grounds upon which the Report was to be challenged, these would be set out in the affidavit. However, these are the only challenges identified.
7. There is also the wider picture of the litigation as a whole. It is difficult to ascertain precisely how much the plaintiff says the defendants owe in each of the four claims. The plaintiff's challenges to the Report are mathematically inconsistent with the sums sought in the statement of claim. He claims to be entitled to a grand total of $673,484, which is well in excess of the amounts in the four statements of claim (which total $306,795.74). When this was pointed out, he sought to explain this larger sum by denying ever receiving any money whatever from the defendants, although that is clearly not the case, given his concessions about receiving the sums set out at CB 350, in terms of cheques paid to him, as well as the amounts of $20,000 and $30,000 in cash.
8. Mr Nguyen acknowledged that the plaintiff was insolvent, and said that he was too. He stated that he could not afford to go on with this litigation if he was ordered to pay more security for costs. In practical terms, it did not matter what the security sum was or how long he was given to pay, as he has no assets or income of any kind. The company has not earned any income for some years.
9. Mr Nguyen's other submissions centred upon his anger that the defendants took so long to pay him, and to his belief that this was both dishonest and unjust.
10. The end result is that the parties now face a six-day-plus hearing concerning whether the adoption of the Referee's Report should occur. Given Mr Nguyen's concessions, the best that the plaintiff can hope for is a favourable ruling in relation to that part of the cross-claim relating to the sprinkler problem, a sum of around $19,000. Mr Nguyen acknowledges that the sprinkler system was defectively installed; his point is that the negligence was that of others, and not of himself. There is no challenge to the quantum of the cross-claim.

The relevant principles of law

1. Rule 42.21 of the Uniform Civil Procedure Rules ("UCPR") 2005 (NSW) provides: "42.21 Security for costs (1) If, in any proceedings, it appears to the court on the application of a defendant-- (a) that a plaintiff is ordinarily resident outside Australia, or (b) that the address of a plaintiff is not stated or is mis-stated in his or her originating process, and there is reason to believe that the failure to state an address or the mis-statement of the address was made with intention to deceive, or (c) that, after the commencement of the proceedings, a plaintiff has changed his or her address, and there is reason to believe that the change was made by the plaintiff with a view to avoiding the consequences of the proceedings, or (d) that there is reason to believe that a plaintiff, being a corporation, will be unable to pay the costs of the defendant if ordered to do so, or (e) that a plaintiff is suing, not for his or her own benefit, but for the benefit of some other person and there is reason to believe that the plaintiff will be unable to pay the costs of the defendant if ordered to do so, or (f) that there is reason to believe that the plaintiff has divested assets with the intention of avoiding the consequences of the proceedings, the court may order the plaintiff to give such security as the court thinks fit, in such manner as the court directs, for the defendant's costs of the proceedings and that the proceedings be stayed until the security is given. (1A) In determining whether it is appropriate to make an order that a plaintiff referred to in subrule (1) give security for costs, the court may have regard to the following matters and such other matters as it considers relevant-- (a) the prospects of success or merits of the proceedings, (b) the genuineness of the proceedings, (c) the impecuniosity of the plaintiff, (d) whether the plaintiff's impecuniosity is attributable to the defendant's conduct, (e) whether the plaintiff is effectively in the position of a defendant, (f) whether an order for security for costs would stifle the proceedings, (g) whether the proceedings involves a matter of public importance, (h) whether there has been an admission or payment in court, (i) whether delay by the plaintiff in commencing the proceedings has prejudiced the defendant, (j) the costs of the proceedings, (k) whether the security sought is proportionate to the importance and complexity of the subject matter in dispute, (l) the timing of the application for security for costs, (m) whether an order for costs made against the plaintiff would be enforceable within Australia, (n) the ease and convenience or otherwise of enforcing a New South Wales court judgment or order in the country of a non-resident plaintiff. (1B) If the plaintiff is a natural person, an order for security for costs cannot be made merely on account of his or her impecuniosity. (2) Security for costs is to be given in such manner, at such time and on such terms (if any) as the court may by order direct. (3) If the plaintiff fails to comply with an order under this rule, the court may order that the proceeding on the plaintiff's claim for relief in the proceedings be dismissed. (4) This rule does not affect the provisions of any Act under which the court may require security for costs to be given."
2. As to security for costs generally, I note that the plaintiff has previously conceded that the threshold test in r 42.21 has been satisfied and I note the observations of Strathdee DCJ in T & H Pty Ltd v 304 Chapel Rd Pty Ltd; T & H Pty Ltd v Trinh at [10]. Once the threshold question is answered in the affirmative, the onus of proof switches to the plaintiff to establish that an order for security ought not be made (Wollongong City Council v Legal Business Centre Pty Limited [2012] NSWCA 245 at [30], per Beazley JA). If material change of circumstance can be shown, it is a matter for the plaintiff to persuade the Court why a further order should not be made. Impecuniosity is not to the point at this stage of the proceedings, because the upshot of the Referee's Report is that moneys are owed by the plaintiff to the defendants.
3. The question of the orders to make requires UCPR r 24.21 (1A) to be addressed. This rule provides as follows: "(1A) In determining whether it is appropriate to make an order that a plaintiff referred to in subrule (1) give security for costs, the court may have regard to the following matters and such other matters as it considers relevant-- (a) the prospects of success or merits of the proceedings, (b) the genuineness of the proceedings, (c) the impecuniosity of the plaintiff, (d) whether the plaintiff's impecuniosity is attributable to the defendant's conduct, (e) whether the plaintiff is effectively in the position of a defendant, (f) whether an order for security for costs would stifle the proceedings, (g) whether the proceedings involves a matter of public importance, (h) whether there has been an admission or payment in court, (i) whether delay by the plaintiff in commencing the proceedings has prejudiced the defendant, (j) the costs of the proceedings, (k) whether the security sought is proportionate to the importance and complexity of the subject matter in dispute, (l) the timing of the application for security for costs, (m) whether an order for costs made against the plaintiff would be enforceable within Australia, (n) the ease and convenience or otherwise of enforcing a New South Wales court judgment or order in the country of a non-resident plaintiff."
4. Where an order for security for costs has been made and a further payment of security is sought, the moving party must demonstrate a material change in circumstances: Misthold Pty Ltd v NSW Historic Sites and Railway Heritage Company Pty Ltd [2022] NSWSC 42 (Payne JA); SSPeetham Pty Ltd as trustee for the CHB CDI Trust v Marcos Accountants Pty Ltd [2020] NSWSC 378 at [19] (Stevenson J); Ingot v Macquarie [No 5] [2006] NSWSC 255 at [9] (McDougall J; Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 at 46 (McLelland J)).
5. This is not a case of overlooked or underestimated costs, as was the case in SSPeetham Pty Ltd as trustee for the CHB CDI Trust v Marcos Accountants Pty Ltd, but a completely new set of circumstances arising from the effective resolution of the claims by the Referee. The prospect of a six-day-plus hearing on whether the Report in its entirety should be adopted is as unexpected as it is unwelcome to the defendants.
6. I am satisfied that the defendants have established that the plaintiff's rejection of the Report amounts to a material change in circumstances warranting an order for further security.
7. As Payne JA noted in Misthold Pty Ltd v NSW Historic Sites and Railway Heritage Company Pty Ltd at [18], there is also the question of whether or not the discretion should be exercised. Mr Freeman points to the following factors: 1. The plaintiff has brought four proceedings against the defendants and it has been found that the plaintiff in fact owes the defendants money. 2. The defendants have already incurred $323,000 in legal fees and only have $70,000 available in Court. 3. The plaintiff wishes to pursue a further 6 day hearing, which will cost the defendants at least another $86,000. 4. The plaintiff admits that it cannot this or any other costs order. 5. If security is not, granted, the defendants will be forced to litigate in circumstances where they can never recover the further costs. 6. In all the circumstances, it is in the interests of justice that further security of $61,000 be granted and that these proceedings be stayed pending provision of security.
8. I have given a great deal of weight to Mr Nguyen's submission that the effect of making the order is to stultify the proceedings: Yandil Holdings Pty Ltd v Insurance Company of North America (1985) 3 ACLC 542 at 545. I note, however, that Strathdee DCJ did not consider there was any evidence to support the proposition that the plaintiff was insolvent because of this litigation (at [18]). I also note Strathdee DCJ's observations about the financial position of Mr Nguyen and the findings (at [23]) that Mr Nguyen's strained financial situation has not been caused by the defendants' actions.
9. I have also taken into account, as did Strathdee DCJ (at [23]), the very considerable delay in the commencement of these proceedings, which has been compounded by even more significant delays in the progress of the claims since that time.
10. I was not addressed as to the genuineness of the proceedings (UCPR r 24.21 (1A)(b): Interslice Pty Ltd v CCA Investments - Bass Hill Pty Ltd [2021] NSWSC 1578 at [49] - [51]; HP Mercantile Pty Ltd v Dierickx [2013] NSWCA 87 at [10]), and must be careful not to draw conclusions as to the merits of the case in those circumstances. However, in view of Mr Nguyen's admissions that the invoices he had claimed had been left out of the Report were in fact included, I consider some very small allowance should be made for this factor.
11. Taking into account all of the discretionary factors, this is a clear case where a further order for security for costs should be made by reason of the material change in circumstances following the Referee's Report.

The amount and timing of the security order

1. The defendants' costs to 30 April 2021 were $323,887 (excluding GST) (Mr Than's Affidavit at [4]). Given that there is still another six-day-plus hearing, then further costs of $86,800 will be incurred by the defendants, which is estimated at $61,000 for party/party costs (assessed at 70%) (Mr Than's Affidavit at 32; CB at 15).
2. The plaintiff admits that it is impecunious (see Mr Nguyen's affidavit of 23.06.2021 at [13]; CB 48 and his affidavit of 3.2.2022 at [9]; CB at 300). The balance sheet of the plaintiff as at 30 June 2021 records $14 in assets and a liability to the director for a loan of $386,793, which is a net deficiency of assets of ($386,779) (CB at 322).
3. Mr Nguyen frankly acknowledged that he had no means of paying any sum at any time. He is in no position to offer a guarantee as proposed in order 2 of the Notice of Motion, and Mr Freeman did not press for this.
4. As to the quantum ($61,000), Mr Nguyen did not challenge this assessment, and I consider it to be a very reasonable estimate of party/party costs for a six-day-plus hearing.
5. In practical terms, there is no reason to extend time or to reduce the sum, and accordingly I propose to make orders for the 28-day period of time and for the sum sought in the Notice of Motion.

Costs and other orders

1. I was not addressed as to costs. I consider that costs should follow the event. Any application to vary the order to this effect should be made when these proceedings are next before the court.
2. It will be necessary to monitor compliance with these orders and as foreshadowed to the parties these proceedings have been listed for further directions at 10.00 am on 2 May 2022.

Order: 1. The plaintiff provide further security for the defendants' costs of the proceedings (as defined in the Schedule set out at paragraph 2 of this judgment) in an amount of $61,000 within 28 days of the date of this order. 2. The plaintiff pay the defendants' costs of this application. 3. Stand these proceedings over to 2 May 2022 for further directions.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 March 2022