Ballard v Brookfield Australia Investments Ltd

[2013] NSWCA 18

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Ballard v Brookfield Australia Investments Ltd [2013] NSWCA 18

Hearing dates:

8 January 2013

Decision date:

08 January 2013

Before:

Ward JA

Decision:

Costs ordered on a party/party basis of the notices of motion

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PRACTICE AND PROCEDURE - non-compliance with orders of the court - delay in filing submissions - indemnity costs orders only in the case of contumelious conduct - application for indemnity costs denied - party and party costs awarded - costs assessor may take delay and its consequences into account in their assessment

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Dunstan v Rickwood (No. 2) [2004] NSWCA 266
Leichhardt Municipal Council v Green [2004] NSWCA 341
Sydney City Council v Geftlick [2006] NSWCA 280

Category:

Costs

Parties:

David Ballard (Appellant/Respondent on motions)
Brookfield Australia Investments Ltd (First Respondent/Applicant on motion)
Multiplex Corporate Agency Ltd (Second Respondent/Applicant on motion)
Construction Forestry Mining and Energy Union (Third Respondent/Applicant on motion)
Construction Forestry Mining and Energy Union (New South Wales Branch) (Fourth Respondent/Applicant on motion)
Andrew Ferguson (Fifth Respondent/Applicant on motion)

Representation:

Counsel:
D M Loewenstein (Appellant/Respondent on motions)
P Kulevski (First and Second Respondents/Applicants on motions)
J H Pearce (Third to Fifth Respondents/Applicants on motions)
Solicitors:
Sagacious Legal Pty Ltd (Appellant)
Clayton Utz (First & Second Respondents)
Taylor & Scott Lawyers (Third, Fourth & Fifth Respondents)

File Number(s):

CA 12/169375

 Decision under appeal 

Citation:

[2011] NSWSC 426

Date of Decision:

2012-05-03 00:00:00

Before:

McDougall J

File Number(s):

07/266587

Judgment (ex tempore)

1. HER HONOUR: Before me this morning were two notices of motion brought respectively by the first and second respondents on the one hand, and by the third to fifth respondents on the other. The respective notices of motion sought dismissal of the appeal proceedings pursuant to r 12.7 of the Uniform Civil Procedure Rules2005 (NSW) and/or the inherent jurisdiction of the Court on the basis that there had been non compliance with orders made in relation to the service of the appellant's submissions on appeal.

1. The application for that relief was not pressed in circumstances where, at approximately 8pm last night (7 January 2013) or thereabouts, the appellant's submissions on appeal were forwarded to the solicitors acting for the respective respondents. What is pressed before me is an application by each of the sets of respondents for the appellant to pay the costs of this motion on an indemnity basis. In support of that application, an affidavit of Ms Nina Angela Molino sworn 8 January 2013 has been read. In response, the appellant has filed in Court an affidavit of Ms Charlotte Grounds, sworn today. Ms Grounds is a solicitor employed by the solicitors on the record for the appellant.

1. The basis on which indemnity costs orders are sought is the non compliance (which is described as contumelious) with successive directions in relation to the filing of submissions on appeal. There have been four separate directions for the filing of the submissions on appeal. On 18 December 2012, I made a further order for the submissions to be served by 21 December 2012.

1. There have been, it seems, only two communications from the solicitors acting for the appellant in relation to the state of play in respect of the submissions, one being an email on 21 December 2012 (when the submissions were due) advising that they had had difficulty contacting their client in respect of the submissions, expected to be able to speak to their client over the weekend, and would get instructions and advise during the course of Monday, 24 December 2012. There was no communication on that day. The only other communication was an email at approximately 5pm yesterday (7 January 2013) attaching a letter explaining that the appeal submissions would be served later that afternoon.

1. Reference is made by Counsel for the first and second respondents (Mr Kulevski) to the explanations that were given before Campbell JA (when his Honour had extended the time for filing submissions on the occasion before last) as to the submissions then being settled by Counsel. Ms Grounds, in her affidavit, has explained the steps taken to seek to have the submissions settled by Counsel. She has also explained that, since 18 December 2012, Sagacious Legal, (the solicitors for Mr Ballard) were advising and assisting in respect of Mr Ballard's options for security for costs (orders for which were by me on 18 December 2012) and that this had regrettably come at the cost of not being in a position earlier to finalise the appeal submissions.

1. The appeal is expected to be listed in or about July 2013, and it is noted that the delay between 21 December 2012 and 7 January 2013 occurred during the Christmas break. Ms Grounds, in her affidavit, apologises to the Court and to the respondents for the delay in finalising the submissions.

1. Caution is required to be exercised when considering the power to make indemnity costs orders. In Sydney City Council v Geftlick [2006] NSWCA 280 Tobias JA, with whom Mason JA and Hodgson JA agreed, said that the Court should depart from the general rule and award indemnity costs only where the conduct of the party against whom the order is sought is plainly unreasonable.

1. In Leichhardt Municipal Council v Green [2004] NSWCA 341, Santow JA said that indemnity costs orders should be reserved for the most unreasonable of actions by unsuccessful plaintiffs.

1. Those authorities were cited with approval by the Court of Appeal in Dunstan v Rickwood (No. 2) [2004] NSWCA 266.

1. While I consider that there is force to the submission that there was a lack of courtesy on the part of the appellant's solicitors in failing to keep the respondents informed as to when the submissions might be expected to be served, I am not satisfied that contumelious conduct has been demonstrated. There has been an explanation proffered, albeit belatedly, for the delay. Had an explanation that the submissions were delayed, but were expected to be served on 7 January, been made at an earlier time, it is likely that the costs of preparation for the notice of motion would still have been incurred because the respondents' position has (not unreasonably) been that the respondents needed to see the submissions before determining what course would be taken in relation to the notices of motion that had been filed on 21 December 2012 and on 3 January 2013, respectively, by the respondents.

1. In the circumstances, I consider that the appropriate order is that the appellant pay the costs of the respective respondents' notices of motion on a party and party basis. For the purposes of the assessment of those costs, I simply note that the late timing of the notice, as to when the submissions would be served (and the late service of those submissions on 7 January 2013) appears to have had the not unreasonable consequence that additional costs have been incurred by the first and second respondents in briefing new counsel to deal with the matter (in the absence, over the vacation period, of Counsel already retained in the proceedings). The assessing officer may take that observation into account as and how the assessing officer sees fit.

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Decision last updated: 14 February 2013