An v Joo (No 2) [2020] NSWSC 377

An v Joo (No 2) [2020] NSWSC 377

The Court, applying the principles in Lai Qin, determined that where proceedings are resolved without a hearing on the merits, all parties having acted reasonably, no costs order should be made. The adversarial nature prevented application of common fund costs principles. Undertakings to protect charitable assets and lack of a litigated outcome justified no order as to costs, except for the discrete costs application, for which successful parties may be entitled to costs subject to submissions.

Parties
Plaintiff: James An; First Defendant: Jeung Oh Joo; Second Defendant: Tae Jun Gim; Third Defendant: Jung Hyun Kim; Fourth Defendant: Dong Boo Kim; Fifth Defendant: Dug Ryang Chung; Sixth Defendant: Ki Boo Song; Seventh Defendant: Joon Hui Jang; Eighth Defendant: Open Door Korean Cultural Society Limited (ACN 615 471 068); Ninth Defendant: Open Door Church Incorporated (INC 9880520); Tenth Defendant: Abraham Min; Eleventh Defendant: Chang Gun Jeon; Twelfth Defendant: Ho In Park; Thirteenth Defendant: In Soon Kang; Fourteenth Defendant: Hongkuk Kim; Fifteenth Defendant: Sang Lip Kim; Sixteenth Defendant: Young Kwon; Seventeenth Defendant: Attorney General for New South Wales
Jurisdiction
Australia
Judgment Date
08 April 2020
Procedural Posture
Equity / Post Judgment Costs Determination
Outcome
No order as to costs of the main proceedings; costs application reserved for further submissions
Legal Topics
Costs, Charitable Trusts, Party/party Costs, Discontinuance, Election of Committee, Corporate Governance
Equity Charity Law Civil Procedure Costs Charitable Trusts Party/party Costs Discontinuance Election of Committee +1 more

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Parties

James An

Plaintiff

Jeung Oh Joo

First Defendant

Tae Jun Gim

Second Defendant

Jung Hyun Kim

Third Defendant

Dong Boo Kim

Fourth Defendant

Dug Ryang Chung

Fifth Defendant

Ki Boo Song

Sixth Defendant

Joon Hui Jang

Seventh Defendant

Open Door Korean Cultural Society Limited (ACN 615 471 068)

Eighth Defendant

Open Door Church Incorporated (INC 9880520)

Ninth Defendant

Abraham Min

Tenth Defendant

Chang Gun Jeon

Eleventh Defendant

Ho In Park

Twelfth Defendant

In Soon Kang

Thirteenth Defendant

Hongkuk Kim

Fourteenth Defendant

Sang Lip Kim

Fifteenth Defendant

Young Kwon

Sixteenth Defendant

Attorney General for New South Wales

Seventeenth Defendant

Procedural Posture

Equity / Post Judgment Costs Determination

Legal Issues

  1. 1 Appropriate costs order following compromise of proceedings and no trial on merits
  2. 2 Application of costs principles in charitable trust litigation
  3. 3 Whether costs should be apportioned between plaintiff, defendants, charities

Ratio Decidendi

The Court, applying the principles in Lai Qin, determined that where proceedings are resolved without a hearing on the merits, all parties having acted reasonably, no costs order should be made. The adversarial nature prevented application of common fund costs principles. Undertakings to protect charitable assets and lack of a litigated outcome justified no order as to costs, except for the discrete costs application, for which successful parties may be entitled to costs subject to submissions.

Court Disposition

No order as to costs of the main proceedings; costs application reserved for further submissions

Orders

  • Further amended statement of claim dismissed
  • Amended cross claim dismissed