QUACH AND ANOR v MUSTAFA [1995] NSWCA 385

QUACH AND ANOR v MUSTAFA [1995] NSWCA 385

Although the primary judge erred by failing to give sufficient reasons for not applying the ordinary costs rule (Pt19A R9(6) DCR), the discretion to 'otherwise order' was nonetheless properly exercisable in this case because the defendants' failure to present available crucial surveillance film at arbitration justified depriving them of costs otherwise due from the offer date. Thus, the appeal was dismissed on the merits following a fresh exercise of discretion.

Parties
Appellants/claimants/defendants: My Loan Quach and Buo Lam Quach; Respondent/opponent/plaintiff: Gonul Mustafa
Jurisdiction
Australia
Judgment Date
15 June 1995
Procedural Posture
Appeal / Judgment on Summons for Leave to Appeal and Appeal
Outcome
Appeal dismissed; leave to appeal granted
Legal Topics
Offer of Compromise, Costs Discretion, Arbitration, District Court Practice
Civil Procedure Costs Offer of Compromise Costs Discretion Arbitration District Court Practice

Case Brief

Summary, issues, holding and outcome

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Parties

My Loan Quach and Buo Lam Quach

Appellants/claimants/defendants

Gonul Mustafa

Respondent/opponent/plaintiff

Procedural Posture

Appeal / Judgment on Summons for Leave to Appeal and Appeal

Legal Issues

  1. 1 Whether the judge erred by failing to give reasons for not ordering costs in accordance with Pt19A R9(6) District Court Rules where the judgment was less than the defendant's offer of compromise
  2. 2 Whether the District Court judge properly exercised the discretion to 'otherwise order' under Pt19A R9(6) DCR in the context of intervening arbitration

Ratio Decidendi

Although the primary judge erred by failing to give sufficient reasons for not applying the ordinary costs rule (Pt19A R9(6) DCR), the discretion to 'otherwise order' was nonetheless properly exercisable in this case because the defendants' failure to present available crucial surveillance film at arbitration justified depriving them of costs otherwise due from the offer date. Thus, the appeal was dismissed on the merits following a fresh exercise of discretion.

Court Disposition

Appeal dismissed; leave to appeal granted

Orders

  • Grant leave to appeal
  • Dismiss the appeal