Tralee Technology Holdings Pty Limited v Yun Chen

Supreme Court of NSW|2015-09-23|Before: Bellew J

INTRODUCTION

On 11 September 2015 I delivered judgment in these proceedings in which I allowed the plaintiff's appeal against a judgment and orders of Magistrate Huntsman in the Local Court, and remitted the proceedings to the Magistrate to determine them according to law: Tralee Technology Holdings Pty Limited v Yun Chen [2015] NSWSC 1259.
At the time of delivering judgment, I made orders that each party provide short written submissions as to costs. Those submissions having been received, this judgment deals with that remaining issue.

THE MAGISTRATE'S ORDER AS TO COSTS

In my previous judgment (at [11]) I noted that the plaintiff's amended statement of claim sought damages totalling $57,100.00. I further noted (at [13]) that having heard the evidence the Magistrate concluded that the plaintiff was entitled to damages in the sum of $2,807.17 plus interest calculated in accordance with s. 100 of the Civil Procedure Act 2005 (NSW).
The Magistrate delivered a separate judgment as to costs on 6 January 2014. Her Honour noted at [29] that the plaintiff was successful in obtaining a judgment for less than 5% of the amount claimed. Her Honour proceeded to conclude that the appropriate costs order was that the plaintiff pay 80% of the defendant's costs, as agreed or assessed.

SUBMISSIONS OF THE PLAINTIFF

Counsel for the plaintiff submitted that I should order that: 1. the defendant pay the plaintiff's costs of the proceedings in this Court; 2. the orders as to costs made by the Magistrate be set aside; 3. the costs of the proceedings in the Local Court follow the event of those proceedings upon their final determination or alternatively, be left to the discretion of the Magistrate at the conclusion of the proceedings.
As to the first order, counsel for the plaintiff submitted that there was no reason that costs should not follow the event: Uniform Civil Procedure Rules 2005 (NSW) r. 42.1.
As to the second and third orders, the essential submission advanced on behalf of the plaintiff was that aspects of the Magistrate's conclusions had now been reversed and that ultimately, at the conclusion of the proceedings in the Local Court, the question of costs would need to be revisited. Counsel submitted that the ordinary consequence of a re-trial (or a remittal to the court before which the matter came at first instance) was that the costs of the previous trial would follow the event of the new hearing. In the alternative to that order, counsel sought that the costs of the Local Court proceedings be left to the discretion of the Magistrate at the conclusion of the proceedings.

SUBMISSIONS OF THE DEFENDANT

Counsel for the defendant did not cavil with the proposition that the plaintiff was entitled to its costs of the proceedings before this Court. However, he submitted that if otherwise qualified, the defendant should be granted a certificate in respect of these costs pursuant to s. 6(1)(a) of the Suitor's Fund Act 1951 (NSW).
As to the costs of the proceedings in the Local Court, counsel for the defendant accepted the general rule that such costs should abide the outcome of the proceedings remitted, and/or be left to the discretion of the court hearing those proceedings. However, counsel for the defendant submitted that there could be departure from that general rule in appropriate circumstances. It was submitted that in light of the views that I reached in my principal judgment, the claim brought by the plaintiff upon further hearing would be less than the $57,100.00 which was claimed at first instance. It was submitted, in particular, that in light of my findings it would not be open to the plaintiff to pursue the claim for economic loss which was originally made and that the fact that the plaintiff's claim was now limited in that way represented a substantial success on the part of the defendant. It was submitted that there was no reason to deprive the defendant of her costs of a part of the claim.
For these reasons, it was submitted by counsel for the defendant that: 1. the plaintiff should pay 75%, or alternatively 50%, of the defendant's costs of the proceedings in the Local Court, with the remaining portion left to the discretion of the Magistrate upon the final determination of the matter; 2. alternatively, that the entirety of the costs of the proceedings in the Local Court be left to the discretion of the Magistrate.

CONSIDERATION

There is no issue between the parties that the plaintiff is entitled to its costs of the proceedings in this Court. I propose to make an order accordingly.
Further, as I have previously noted, the defendant has sought a certificate pursuant to s. 6(1)(a) of the Suitor's Fund Act 1951 (NSW) which is in the following terms: 6 Costs of certain appeals (1) If an appeal against the decision of a court: (a) to the Supreme Court on a question of law or fact, or (b) to the High Court from a decision of the Supreme Court on a question of law, succeeds, the Supreme Court may, on application, grant to the respondent to the appeal or to any one or more of several respondents to the appeal an indemnity certificate in respect of the appeal. … (2) Where a respondent to an appeal has been granted an indemnity certificate, the certificate shall entitle the respondent to be paid from the Fund: (a) an amount equal to the appellant's costs of: (i) the appeal in respect of which the certificate was granted, and also (ii) where that appeal is an appeal in a sequence of appeals, any appeal or appeals in the sequence that preceded the appeal in respect of which the certificate was granted, ordered to be paid and actually paid by the respondent: Provided that where the Director-General is satisfied that the respondent is unable through lack of means to pay the whole of those costs or part thereof or that payment of those costs or part thereof would cause the respondent undue hardship, or where those costs or part thereof have not been paid by the respondent and the Director-General is satisfied that the respondent cannot be found after such strict inquiry and search as the Director-General may require or that the respondent unreasonably refuses or neglects to pay them, the Director-General may, if so requested by the appellant or the respondent, direct in writing that an amount equal to those costs or to the part of those costs not already paid by the respondent be paid from the Fund for and on behalf of the respondent to the appellant and thereupon the appellant shall be entitled to payment from the Fund in accordance with the direction and the Fund shall be discharged from liability to the respondent in respect of those costs to the extent of the amount paid in accordance with the direction, (b) fifty per centum or such other percentage as may be prescribed (at the time when the indemnity certificate is granted) in lieu thereof by the Governor by proclamation published in the Gazette of the amount payable from the Fund pursuant to paragraph (a) or, where no amount is so payable, an amount equal to the costs of: (i) the appeal in respect of which the certificate was granted, and also (ii) where that appeal is an appeal in a sequence of appeals, any appeal or appeals in the sequence that preceded the appeal in respect of which the certificate was granted, as taxed, incurred by the respondent and not ordered to be paid by any other party: Provided that where an amount is payable from the Fund pursuant to paragraph (a), but the Director-General directs that the costs of the appeal or appeals referred to in subparagraph (i) or in subparagraphs (i) and (ii) incurred by the respondent and not ordered to be paid by any other party be taxed at the instance of the respondent or those costs are, without such a direction, taxed at the instance of the respondent, the amount payable from the Fund under this paragraph shall be the amount equal to those costs as so taxed, and (c) where the costs referred to in paragraph (b) are taxed at the instance of the respondent, an amount equal to the costs incurred by the respondent in having those costs taxed. Notwithstanding the foregoing provisions of this subsection: (i) where the costs referred to in paragraph (b) are taxed at the instance of the respondent, the aggregate of the amounts payable from the Fund pursuant to that paragraph and paragraph (c) shall not exceed the amount payable from the Fund pursuant to paragraph (a). (2A) The maximum amount payable from the Fund for any one appeal is: (a) $20,000 in the case of an appeal to the High Court, or (b) $10,000 in the case of any other appeal.
Counsel for the plaintiff made no submission in response to the defendant's application for a certificate. In light of the reasons which led me to conclude that the matter should be remitted to the Magistrate, I propose to accede to that application.
The real issue between the parties is what order ought be made in respect of the costs of the proceedings in the Local Court. In Getex Pty Limited v Reed Business Information Pty Limited (No 2) [2013] NSWSC 1271, I canvassed a number of general principles which govern that question. In particular I noted that: 1. the general rule is that where a new trial is ordered, the costs of the first trial will follow the event of the new trial: Brittain v Commonwealth (No 2) [2004] NSWCA 427; 2. departures from that general rule may be justified in an individual case: Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15; Brownlie v Overend [1979] VR 283; Stewart v McKinley (1885) 11 VLR 802; Jones v Richards (1899) 15 TLR 398.
I also considered this question in MGIL Pty Limited v Maria Di Giannantonio as Executrix of the Deceased Estate of Michele Di Giannantonio (No 2) [2013] NSWSC 1032 where I concluded that there can be a departure from the general rule in circumstances where several issues remain to be determined, such that there are several possibilities as to the ultimate outcome of the proceedings. I concluded that in the circumstances of that case this factor supported a conclusion that the question of the costs of the Local Court proceedings was more appropriately determined by the Magistrate at a time when all issues had been determined to finality. In my view, that mirrors the situation in the present case. Although the scope of the litigation on the further hearing of the matter will be narrower than what was previously the case, there remain a number of issues, the resolution of which will necessarily determine the extent of any monetary judgment which may or may not be entered in favour of the plaintiff. For those reasons, I am of the view that the questions of costs in the Local Court proceedings is a matter which is more appropriately determined by the Magistrate when such proceedings have concluded.

ORDERS

For these reasons I make the following orders: 1. The orders made by the Magistrate on 6 January 2014 in respect of costs are set aside. 2. The defendant is to pay the plaintiff's costs of the proceedings in this court, as agreed or assessed. 3. The defendant, if otherwise qualified, is granted a certificate, in respect of the costs in order (2) above, pursuant to s. 6(1)(a) of the Suitor's Fund Act 1951 (NSW). 4. The costs of the proceedings in the Local Court are to be at the discretion of the Magistrate at the conclusion of those proceedings.

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: 23 September 2015

Suitor's Fund Act 1951(NSW)

Suitors Fund Act 1951(NSW)

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