Royal Guardian Mortgage Management Pty Ltd v Nguyen [2012] NSWSC 769

Royal Guardian Mortgage Management Pty Ltd v Nguyen [2012] NSWSC 769

The costs discretion miscarried because the Associate Justice did not apply the correct principle governing costs where a motion resolves without a merits hearing and made an adverse costs order against the plaintiff despite finding that the plaintiff had not acted unreasonably. On re-exercise, the defendants acted unreasonably by taking no substantial action for a lengthy period to assess the plaintiff's 10 December 2010 offer of an RGMC guarantee and RGMC's ability to meet a costs order, before accepting substantially that offer shortly before the hearing. That unreasonable conduct justified an ordinary costs order in favour of the plaintiff, but not indemnity costs.

Jurisdiction
Australia
Judgment Date
13 July 2012
Procedural Posture
Appeal From an Award of Costs Concerning a Security for Costs Notice of Motion / Appeal From Order Made by Associate Justice Harrison on 15 May 2012
Outcome
Appeal allowed.
Legal Topics
['security for Costs' 'costs Discretion' 'appeal From Discretionary Judgment' 'no Hearing on the Merits' 'indemnity Costs']
['civil Procedure' 'costs' 'appeals'] ['security for Costs' 'costs Discretion' 'appeal From Discretionary Judgment' 'no Hearing on the Merits' 'indemnity Costs']

Case Brief

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Procedural Posture

Appeal From an Award of Costs Concerning a Security for Costs Notice of Motion / Appeal From Order Made by Associate Justice Harrison on 15 May 2012

Legal Issues

  1. 1 ["Whether the Associate Justice erred in ordering the plaintiff to pay the defendants' costs of the security for costs motion after the motion was resolved by consent." 'Whether the principles in Re Minister for Immigration & Ethnic Affairs; ex parte Lai Qin required no order as to costs unless a party acted unreasonably or one party would almost certainly have succeeded.' "Whether the defendants acted unreasonably by rejecting or failing to pursue the plaintiff's 10 December 2010 offer of a guarantee from Royal Guardian Mortgage Corporation Pty Ltd before accepting substantially that offer shortly before the hearing." 'Whether any costs order in favour of the plaintiff should be on an indemnity basis.']

Ratio Decidendi

The costs discretion miscarried because the Associate Justice did not apply the correct principle governing costs where a motion resolves without a merits hearing and made an adverse costs order against the plaintiff despite finding that the plaintiff had not acted unreasonably. On re-exercise, the defendants acted unreasonably by taking no substantial action for a lengthy period to assess the plaintiff's 10 December 2010 offer of an RGMC guarantee and RGMC's ability to meet a costs order, before accepting substantially that offer shortly before the hearing. That unreasonable conduct justified an ordinary costs order in favour of the plaintiff, but not indemnity costs.

Court Disposition

Appeal allowed.

Orders

  • ['Appeal allowed.' "Set aside order 1 made by Associate Justice Harrison on 15 May 2012 and in lieu thereof order the defendants to pay the plaintiff's costs of the notice of motion filed on 5 May 2011, including the costs of the application for the costs of that motion." 'Order the defendants to pay the costs of...