Tam Minh Pham v Prime Marble & Granite Pty Ltd & ors [2006] NSWIRComm 292 | Case summary

1 Before the Court is a motion brought by the three respondents to s 106 proceedings commenced by an applicant pursuant to the Industrial Relations Act 1996 ("the Act"). The motion seeks orders that the proceedings be stayed pending the determination of Local Court proceedings and that the applicant pay certain costs incurred by the respondents, the nature of which I shall shortly discuss. 2 There is no contention that these proceedings should be stayed pending the determination of the Local Court proceedings. What is in issue is the costs orders sought by the respondents. 3 The proceedings were originally constituted by summons filed 24 March 2005. In essence, the applicant claims that he was engaged by the first respondent to perform work and there seems to be an assertion of a dual basis for payment. Initially, at least, the applicant says he was paid a base wage and a sub-contract fee at a rate which varied according to the job location and number of jobs performed in one location. 4 The applicant claims also to have been entitled to payment under a schedule of fees referrable to the type of work performed. I assume there is some overlap. 5 In the original summons there is a claim for pay in lieu of notice and severance pay of about $47,500. There is also a claim for outstanding unpaid fees of about $48,500. 6 The proceedings were the subject of two conciliations before this Court under s 109 of the Act. Before the second conciliation the first respondent had commenced proceedings against the applicant in the Local Court claiming that moneys were due and owing to it for goods and materials supplied by it to the applicant for private jobs which he had undertaken. 7 It is alleged that at the second conciliation counsel for the respondents suggested to counsel for the applicant that the question of unpaid fees alleged to be owing by the applicant should be litigated in the Local Court proceedings, presumably by way of cross-claim. This is what occurred. 8 On 12 July 2006 the applicant filed an amended summons which sought the payment of moneys by reference to what should have been paid in fairness on termination of the contract. In effect, the amended summons in terms of its monetary claim abandoned the amount claimed to be owing for outstanding unpaid fees. Inclusive of annual leave, the amended summons claimed a monetary amount of about $19,000 together with interest and costs. 9 It will be seen, therefore, that pursuant to the amended summons the amount claimed by the applicant had been substantially reduced and the monetary basis for the claim had been substantially amended. 10 The respondents in these interlocutory proceedings have sought an order for the payment of costs of and incidental to the proceedings from 24 March 2005 up to and including 12 July 2006. In essence, these are costs which the respondents say have been thrown away because of the abandonment by the applicant of the claim for unpaid fees. 11 During the course of submissions counsel for the applicant directed the Court to the manner in which the amended summons was framed, submitting that the existence of the contract for the payment of fees was part and parcel of the contract as defined in s 105 of the Act which the proceedings sought to impugn under s 106. Accordingly, therefore, it was submitted that the existence of, and the terms of the fee contract, or part of the contract, was a relevant matter and continued to be a relevant matter in these proceedings. 12 I accept for the purpose of this interlocutory application that the existence of the fee contract as either being the whole or part of the contract between the applicant and the first respondent, may assume some significance for the proceedings as they are currently constituted, and may not necessarily result in the respondents ultimately becoming entitled to a costs order in their favour with respect to that part of the claim and the moneys claimed pursuant to it. 13 The fact that some aspect of this part of the claim may need to be litigated is, in my opinion, a reason why the Court should not at this stage consider whether it is appropriate to grant a costs order in favour of the respondents in the manner sought in this interlocutory application. 14 Furthermore, the applicant relies on the circumstances in which the claim for unpaid fees has been transplanted from this Court to the Local Court as justifying resistance to the making of the costs order as sought by the respondents. Whether, and to what extent a costs order should be made as claimed is, as is well established by the authorities, a matter for the exercise of the discretion which reposes in this Court. Whether, and to what extent costs should be made payable forthwith, has been dealt with by a Full Bench of this Court in UnitedGlobalCom Inc v McRann (No 2) (2004) 133 IR 21. It is not necessary that I canvass the principles discussed by the Full Bench in that case. 15 There is another matter which I feel ought to be taken into account in determining this interlocutory application and that is that whatever work has been undertaken by the respondents' solicitors with respect to the fee component of the overall contract or arrangement, and with respect to whatever fees are due and owing in connection with these proceedings as formulated by the original summons, will also have had to be undertaken by the same solicitor in connection with the Local Court proceedings. Obviously that work should only need to have been undertaken once and can only be claimed once. 16 Whether the respondents will ultimately recover any costs with respect to this work must await a determination by the Local Court of the claim and counter-claim brought in these proceedings. 17 In my view, it is premature at this stage to make any costs order with respect to this particular matter because, hopefully, findings and orders made in the Local Court will raise issues of estoppel for the purpose of these proceedings allowing a competent court to exercise power and jurisdiction at a costs level which is much more appropriate to the amount of the claim currently being litigated before this Court. 18 The competing submissions made by the parties in the course of the hearing this morning have canvassed the jurisdictional basis of the summons as originally formulated and whether, indeed, having regard to the well known Truelove cases before the New South Wales Court of Appeal and a Full Bench of this court, there was jurisdiction and power to deal with the summons as originally formulated. 19 A perusal of the original summons has revealed some deficiencies in the manner in which it has been drafted. There are, for example, claims for commission payments which I assume are intended to refer to fee payments. In any event, it is possible to read the summons as originally formulated as seeking orders and variation of the contract for the payment of certain moneys in certain circumstances, including termination of the contract. On this basis it is arguable, for the purpose of this interlocutory application, that the claim as formulated is not restricted to a claim for enforcement of the existing contract. Any moneys claimed would be those payable, presumably, pursuant to the contract as varied. 20 Seen in this way, it is more appropriate, in my opinion, to decline to deal with the proceedings as originally formulated on the basis that it is clear and apparent that there is no arguable basis under s 106 for the original summons. 21 In all the circumstances, therefore, I am not persuaded at this stage that the Court should make any order for costs and I would propose, therefore, to defer a consideration of the motion brought by the respondents. As I have said, once the Local Court proceedings have been determined there will be much greater clarity in terms of the competing claims brought by the applicant and the respondents with respect to the moneys due and owing, if any, between the applicant and the first respondent. 22 Hopefully, once those proceedings have been concluded, the parties will be in a position to assess the value of any monetary claim which may remain to be litigated before this Court, and will understand in the context of the costs incurred before this Court, whether there is any commercial or other basis which would dictate that the proceedings should continue before this Court. 23 I will stand the proceedings over and subject to anything that counsel might say, I would propose to reserve costs pending the determination of the proceedings before the Local Court. At that stage these proceedings may be relisted by either party making telephone contact with my associate pursuant to the usual liberty to apply, which I hereby grant. 24 In terms of the case management of these proceedings, I would ask that the solicitors exchange assessments of costs incurred to date and assessments of costs likely to be incurred in the further prosecution of these proceedings once the Local Court proceedings have been concluded. 25 I further direct that both sets of assessments be forwarded to each of the sets of clients of each of the solicitors so that there may be no doubt in the minds of the parties about the commercial reality of continuing these proceedings. Given that the proceedings as currently constituted involve a claim for something of the order of $20,000 including interest, it is apparent, without investigating the matter in any detail, that costs on both sides far exceed the amount of the claim. 26 If the further assistance of this Court will in turn assist the parties to reach some sensible resolution of these proceedings by way of conciliation, this can be arranged on the basis that both sets of parties consent to this process and application can be made by telephone to my Associate for that purpose.

Tam Minh Pham v Prime Marble & Granite Pty Ltd & ors

At a glance

Court

Decision date

Before

Source

Judgment (16 paragraphs)

Parties

Cases Cited (2)