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Ajkay v Hickey & Co Pty Ltd

Ajkay v Hickey & Co Pty Ltd

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Supreme Court

New South Wales

Medium Neutral Citation: George Zoltan Ajkay v Hickey & Co Pty Limited [2011] NSWSC 822
Hearing dates: 26 July 2011
Decision date: 05 August 2011
Jurisdiction: Equity Division
Before: Pembroke J
Decision:
See paragraph [30]

Catchwords:
DECLARATIONS - nature of - absence of hearing on merits - when declaration may be made by consent

COSTS - whether payable in absence of hearing on merits - distinction between capitulation and compromise

SEPARATE QUESTION - whether separate question an "event" from which costs may follow - success in totality of proceedings not required - Civil Procedure Act 2005 (NSW) Section 98
COSTS - payable forthwith - when departure from rule justified - identifiable and discrete issue - "just, quick and cheap" resolution of the real issues - courts obligation to identify separate issues to expedite resolution - Civil Procedure Act 2005 (NSW) Section 56 - Uniform Civil Procedure Rules Rule 42.7
Legislation Cited: Civil Procedure Act 2005 (NSW)
Legal Profession Act 2004 (NSW)
Sales Tax Assessment Act 1992 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Blair v Curran (1939) 62 CLR 464
BMI v Federated Clerks Union of Australia (1983) 51 ALR 401
Fiduciary Limited v Morningstar Research Pty Limited (2002) 55 NSWLR 1
Fire Containment Pty Ltd v Robins (No 2) [2011] NSWSC 47
Floruit Holdings Pty Ltd v Sebastian - Builders & Developers Pty Ltd [2009] NSWCA 411
Integral Home Loans Pty Ltd & Anor v Interstar Wholesale Finance Pty Ltd & Anor [2006] NSWSC 1464
Loiero (aka Lero) v Adel Sportswear Pty Limited (No 2) [2010] NSWSC 1208
Myer Queenstown Garden Plaza Pty Ltd v Port Adelaide City Corporation (1975) 33 LGRA 70
One.Tel Limited v Deputy Commissioner of Taxation (2000) 101 FCR 548
Re The Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622
Category: Procedural and other rulings
Parties: George Zoltan Ajkay - plaintiff
Hickey & Co Pty Limited - defendant
Representation: Counsel:
A J McInerney - for the plaintiff
J J Young - for the defendant
Solicitors:
M J Fitzgerald - for the plaintiff
Harris & Company - for the defendant

File Number(s): 2011/63259

Judgment

This application raises several important questions of principle. Those questions are (1) the nature and consequences of consent declarations, (2) whether a costs order should be made where the separate question does not resolve the entire proceedings, (3) whether a costs order on a separate question should be made where there has been no hearing on the merits and the separate question has been resolved by consent and (4) whether, if a costs order is made on the separate question, the costs should be ordered to be paid forthwith.

The Facts

The proceedings have their origin in earlier proceedings (2010/34504) which were commenced in February 2010. The plaintiff in those proceedings was Hickey & Co Pty Ltd (Hickey), which is the defendant in these proceedings. Hickey made claims against Metallising Australia Pty Ltd. The response in part to that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] NSWSC 822
Decision Date: 05 August 2011

CaseChat Overview and Summary

In Ajkay v Hickey & Co Pty Ltd, the court was called upon to resolve a dispute between the plaintiff, Ajkay, and the defendant, Hickey & Co Pty Ltd. The case concerned the interpretation and application of the Civil Procedure Act 2005 (NSW) in the context of declarations made by consent, and the associated costs implications in the absence of a full hearing on the merits of the case. The dispute arose from a contractual agreement between the parties and the subsequent legal proceedings to enforce or interpret that agreement.

The primary legal issue before the court was whether costs are payable when a declaration is made by consent without a full hearing on the merits. Additionally, the court needed to determine if a separate question presented in the proceedings could be considered an "event" from which costs may follow, even if success in the totality of the proceedings is not achieved. The court was also required to examine whether the principles of a "just, quick and cheap" resolution of the real issues justified a departure from the general rule that costs are not payable in the absence of a hearing on the merits.

The court held that costs may be payable in the absence of a hearing on the merits if the case involves an identifiable and discrete issue that is resolved through a declaration made by consent. This aligns with the objectives of the Civil Procedure Act 2005 (NSW) to facilitate a "just, quick and cheap" resolution of disputes. The court identified that the separate question presented could indeed be considered an "event" under Section 98 of the Civil Procedure Act 2005 (NSW), leading to costs being payable. The court also noted that while the plaintiff did not succeed in the totality of the proceedings, the resolution of the discrete issue was sufficient to warrant the payment of costs. This decision underscores the court's obligation to identify and expedite the resolution of separate issues within the broader proceedings.

The court ordered that costs be payable forthwith for the resolved issue, reflecting a departure from the general rule, in line with the principles outlined in Section 56 of the Civil Procedure Act 2005 (NSW) and Rule 42.7 of the Uniform Civil Procedure Rules. The specific amount of costs and further details regarding the unresolved issues were to be determined in subsequent proceedings.

Orders