Tralee Technology Holdings Pty Limited v Yun Chen (No 2)

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.

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.

Counsel for the plaintiff submitted that I should order that:

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.

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:

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:

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:

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.

For these reasons I make the following orders: