Lieu & Anor v Deng & Anor (No 5) [2008] NSWIRComm 67

Lieu & Anor v Deng & Anor (No 5) [2008] NSWIRComm 67

The applicants were successful overall, but the presumption that a successful party is entitled to all costs was qualified because they succeeded on only three of 11 claims and the primary successful issue, repayment of $85,000 to Ms Deng, arose on the sixth day of trial. The Calderbank offers did not justify the respondents' proposed costs orders because each offer was less than the applicants ultimately received and contained a term negativing costs, and the applicants were unaware of the $85,000 payment because the respondents had declined to provide financial records. As the evidence was not led separately for each claim, a just exercise of discretion was to award the applicants 75...

Jurisdiction
Australia
Judgment Date
04 April 2008
Procedural Posture
Application Pursuant to S 106 of the Industrial Relations Act 1996; Costs in Unfair Contract Proceedings / Costs Judgment After Judgment for the Applicants, Determined on Written Submissions
Outcome
The respondents were ordered to pay 75 per cent of the applicants' costs; the applicants' request that the first respondent pay the costs of the second respondent was refused.
Legal Topics
['costs Discretion' 'calderbank Letters' 'partial Success' 'apportionment of Costs' 'section 106 Unfair Contract Relief']
['industrial Law' 'costs' 'unfair Contracts'] ['costs Discretion' 'calderbank Letters' 'partial Success' 'apportionment of Costs' 'section 106 Unfair Contract Relief']

Case Brief

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Procedural Posture

Application Pursuant to S 106 of the Industrial Relations Act 1996; Costs in Unfair Contract Proceedings / Costs Judgment After Judgment for the Applicants, Determined on Written Submissions

Legal Issues

  1. 1 ['Whether the Court should depart from the usual order that costs follow the event where the applicants were partially successful in three out of 11 claims.' 'Whether the applicants should bear costs of litigating claims upon which they failed.' 'Whether Calderbank offers dated 24 April 2003 and 16 December 2004 should affect the costs order.' "Whether the applicants' success on an amended claim raised during the proceedings justified qualifying their entitlement to costs."]

Ratio Decidendi

The applicants were successful overall, but the presumption that a successful party is entitled to all costs was qualified because they succeeded on only three of 11 claims and the primary successful issue, repayment of $85,000 to Ms Deng, arose on the sixth day of trial. The Calderbank offers did not justify the respondents' proposed costs orders because each offer was less than the applicants ultimately received and contained a term negativing costs, and the applicants were unaware of the $85,000 payment because the respondents had declined to provide financial records. As the evidence was not led separately for each claim, a just exercise of discretion was to award the applicants 75...

Court Disposition

The respondents were ordered to pay 75 per cent of the applicants' costs; the applicants' request that the first respondent pay the costs of the second respondent was refused.

Orders

  • ["The respondents are to pay 75 per cent of the applicants' costs in matter No IRC 2821 of 2001, as agreed, or as assessed in accordance with the Court's Rules."]