Al Maha Pty Ltd v Coplin (No 2) - [2018] NSWCA 104

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Al Maha Pty Ltd v Coplin (No 2) [2018] NSWCA 104
Hearing dates: On the papers
Decision date: 17 May 2018
Before: Macfarlan JA;
Meagher JA;
Gleeson JA
Decision:
1. Dismiss Mr Coplin’s notice of motion filed on 21 December 2017.
2. Order Mr Coplin to pay the costs of Al Maha and PropertyFox of that motion.

Catchwords: COSTS – party/party – general rule that costs follow the event – where primary judge upheld claims against one defendant, dismissed claims against other defendant and awarded costs against both defendants – where appellate court allowed appeal by unsuccessful defendant joining successful defendant as a respondent and seeking order dismissing statement of claim with costs – whether appellate court has power to order plaintiff to pay costs at first instance and on appeal of defendant successful at first instance – whether that power should not be exercised – no question of principle
Legislation Cited: Civil Procedure Act 2005 (NSW), s 98
Supreme Court Act 1970 (NSW), s 75A(10)
Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Cases Cited: John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19
Category: Costs
Parties: Al Maha Pty Ltd (Appellant)
Iraklis Gary Coplin (First Respondent)
PropertyFox Pty Ltd (Second Respondent)
Representation:
Counsel:
TM Faulkner SC (Appellant)
M Green SC and B Oliak (First Respondent)
Solicitors:
HWL Ebsworth Lawyers (Appellant)
E Berman & Co (First Respondent)
Jemmeson & Fisher (Second Respondent)

File Number(s): 2017/12148
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Equity Division

Citation:

[2016] NSWSC 1745

Date of Decision:

16 December 2016

Before:

Lindsay J

File Number(s):

2015/143602

Judgment

THE COURT: The Court delivered judgment in this appeal on 11 December 2017: Al Maha Pty Ltd v Coplin [2018] NSWCA 318. The following orders were made:

Allow the appeal.

Set aside the declarations and orders numbered 1 to 7 made on 16 December 2016 and in lieu thereof order that the Statement of Claim be dismissed with costs.

First respondent pay the costs of the appellant and second respondent of the appeal.

The declarations and orders numbered 1 to 7 made by the primary judge included:

7. Order that the defendants pay the plaintiff’s costs of the proceedings

Order 2 made by this Court required Mr Coplin, the unsuccessful plaintiff in relation to all of his claims against Al Maha and PropertyFox, to pay those defendants’ costs of the proceedings at first instance.
By his notice of motion filed on 21 December 2017, Mr Coplin seeks to vary orders 2 and 3 made by this Court to the following:

Order 2:   Set aside the declarations and orders numbered 1 to 7 made on 16 December 2016 and in lieu thereof order that:
1.   The Statement of Claim be dismissed with the Plaintiff to pay the costs of the First Defendant.
2.   The Second Defendant to pay the costs of the Plaintiff.
…
Order…

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: [2018] NSWCA 104
Decision Date: 17 May 2018

CaseChat Overview and Summary

Al Maha Pty Ltd appealed to the Court of Appeal of New South Wales against orders made by a primary judge concerning costs. The primary judge had upheld claims against Al Maha but dismissed claims against Mr Coplin, and had awarded costs against both Al Maha and Mr Coplin. Al Maha sought to join Mr Coplin as a respondent to its appeal and sought an order dismissing the statement of claim with costs.

The central legal issue before the Court of Appeal was whether it possessed the power to order a plaintiff to pay the costs at first instance and on appeal of a defendant who had been successful at first instance. A further question was whether, even if such power existed, it should be exercised in the circumstances of the case, with the court noting that no question of principle was involved.

The Court of Appeal determined that it did have the power to make such orders. However, it declined to exercise that power in favour of Mr Coplin. The court reasoned that the general rule that costs follow the event, which would ordinarily favour a successful defendant, was displaced by the specific circumstances of the case. The court ultimately dismissed Mr Coplin’s notice of motion and ordered Mr Coplin to pay the costs of Al Maha and PropertyFox of that motion.

Orders

Orders of the court

1. Dismiss Mr Coplin’s notice of motion filed on 21 December 2017.

2. Order Mr Coplin to pay the costs of Al Maha and PropertyFox of that motion.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Al Maha Pty Ltd v Coplin (No 2) [2018] NSWCA 104
Hearing dates:	On the papers
Decision date:	17 May 2018
Before:	Macfarlan JA; Meagher JA; Gleeson JA
Decision:	1. Dismiss Mr Coplin’s notice of motion filed on 21 December 2017. 2. Order Mr Coplin to pay the costs of Al Maha and PropertyFox of that motion.
Catchwords:	COSTS – party/party – general rule that costs follow the event – where primary judge upheld claims against one defendant, dismissed claims against other defendant and awarded costs against both defendants – where appellate court allowed appeal by unsuccessful defendant joining successful defendant as a respondent and seeking order dismissing statement of claim with costs – whether appellate court has power to order plaintiff to pay costs at first instance and on appeal of defendant successful at first instance – whether that power should not be exercised – no question of principle
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 98 Supreme Court Act 1970 (NSW), s 75A(10) Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Cases Cited:	John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19
Category:	Costs
Parties:	Al Maha Pty Ltd (Appellant) Iraklis Gary Coplin (First Respondent) PropertyFox Pty Ltd (Second Respondent)
Representation:	Counsel: TM Faulkner SC (Appellant) M Green SC and B Oliak (First Respondent) Solicitors: HWL Ebsworth Lawyers (Appellant) E Berman & Co (First Respondent) Jemmeson & Fisher (Second Respondent)
File Number(s):	2017/12148
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Equity Division Citation: [2016] NSWSC 1745 Date of Decision: 16 December 2016 Before: Lindsay J File Number(s): 2015/143602