Chin Kwun Kwong v Dennis Ming Chung Low (Costs) [2018] NSWSC 1339

Supreme Court New South Wales

Medium Neutral Citation: Chin Kwun Kwong v Dennis Ming Chung Low (Costs) [2018] NSWSC 1339 Hearing dates: 29 June 2018 Date of orders: 27 July 2018 Decision date: 27 July 2018 Jurisdiction: Equity Before: Rein J Decision: See [30] - [34] Catchwords: COSTS – Party/Party – Payable out of a fund – Trust – Where proceedings settled with none of the issues which the Plaintiff came to Court originally to ventilate or later advanced needing to be resolved – Where proceedings settled with only one minor matter left in dispute – Where Plaintiff seeks an order that his costs be paid out of the trust assets – Where Defendants resist such an order and maintain that the Plaintiff should pay their costs (as well as bearing his own) and that their costs be paid out of the trust assets – Whether the Plaintiff as trustee acted unreasonably or for his own benefit in seeking judicial advice – Relevance of Plaintiff's reliance on Counsel's advice and failure to seek the Attorney General's approval or leave of the Court considered; HELD: Parties' costs as agreed or assessed to be paid on the indemnity basis out of the Trust assets. Legislation Cited: Charitable Trusts Act 1993 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667 Chin Kwun Kwong v Dennis Ming Chung Low [2018] NSWSC 719 Dulhunty v Dulhunty [2010] NSWSC 1465 Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66 Miles v Sydney Meat Preserving Co Ltd (1912) 16 CLR 50 Nichols v NFS Agribusiness Pty Ltd [2018] NSWCA 84 O'Brien v McCormick [2005] NSWSC 619 Panama and South Pacific Telegraph Co. v India Rubber, Gutta Percha, and Telegraph Works Co (1875) 10 Ch App 515 Parkes-Linnegar & Anor v Watson (No 2) [2011] NSWSC 181 Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 Re Whiteley; Bishop of London v Whiteley [1910] 1 Ch 600 Winn v Harding (No 2) [2017] NSWSC 601 Texts Cited: Jacobs' Law of Trusts in Australia (Heydon and Leeming, Butterworths, 7th ed, 2006) The Law and Practice Relating to Charities (Picarda, Bloomsbury Professional, 4th ed, 2010) Category: Costs Parties: Chin Kwun Kwong (Plaintiff) Dennis Ming Chung Low (First Defendant) Bernard Hor (Second Defendant) Wing Yip Yee (Third Defendant) Attorney General for New South Wales (Fourth Defendant) Representation: Counsel: Mr J. O'Sullivan (Plaintiff) Mr M. Oakes SC and Mr K. Tang (First, Second and Third Defendants) Mr P. Singleton (Fourth Defendant)