Bartlett v Weatherill (No 2) - [2017] NSWSC 181

Supreme Court

New South Wales

Medium Neutral Citation: Bartlett v Weatherill (No 2) [2017] NSWSC 181
Hearing dates: On the papers
Decision date: 06 March 2017
Jurisdiction: Common Law
Before: Adamson J
Decision:
See [11]

Catchwords: COSTS – party seeking monetary sum who fails to obtain judgment is unsuccessful party, even if breach established – no reason shown to depart from the general principle that costs ought follow the event
Legislation Cited: Suitors’ Fund Act 1951 (NSW), s 6
Australian Consumer Law (Sch 2 to the Competition and Consumer Act 2010 (Cth)), s 18
Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Civil Procedure Act 2005 (NSW), s 98
Cases Cited: Bartlett v Weatherill [2017] NSWSC 31
Mir Bros Developments Pty Ltd v Atlantic Constructions Pty Ltd (1985) 1 NSWLR 491
Category: Costs
Parties: Clinton Garth Bartlett (Plaintiff)
Colin Weatherill (Defendant)
Representation:
Counsel:
RC Gration (Plaintiff)
JA Darvall (Defendant)
Solicitors:
WMD Law (Plaintiff)
Freedman & Gopalan Solicitors (Defendant)

File Number(s): 2016/00228657

Judgment

Introduction

On 6 February 2017 I published reasons allowing the appeal brought by the plaintiff in this Court (Mr Bartlett) against the defendant in this Court (Dr Weatherill): Bartlett v Weatherill [2017] NSWSC 31 and reserved the question of costs. The parties were directed to file submissions if they sought an order other than that the costs ought follow the event (which would have resulted in Dr Weatherill being ordered to pay the costs of the proceedings in this Court and in the Local Court; and the costs orders in the Local Court being set aside).

The parties’ submissions

It is accepted by Dr Weatherill that he should pay the costs of the proceedings in this Court. He seeks a certificate under the Suitors’ Fund Act 1951 (NSW) in respect of these costs. He contended that the costs order in the Local Court should not be disturbed or, in the alternative, that it should be disturbed “to such extent as the Court sees fit”. It was submitted on behalf of Dr Weatherill that since the Local Court found, contrary to Mr Bartlett’s defence, that Mr Bartlett had contravened s 18 of the Australian Consumer Law (Sch 2 to the Competition and Consumer Act 2010 (Cth)), it was appropriate that Mr Bartlett pay Dr Weatherill’s costs of the Local Court proceedings, since it was necessary for him to litigate in order to obtain that finding.
Mr Bartlett submitted that the appropriate orders were the ones foreshadowed as being in accordance with the general rule that costs ought follow the event: Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 42.1. He submitted that, since the result of the Local Court proceedings, following his appeal to this Court, was that he obtained a judgment against Dr Weatherill, there was no reason to depart from the general rule.

Consideration

There is a broad discretion as to costs: s 98 of the Civil Procedure Act 2005 (NSW). However the general rule is that costs follow the event: UCPR, r 42.1. In order to…

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.

Continue reading Bartlett v Weatherill (No 2)

Details

AGLC: Bartlett v Weatherill (No 2) [2017] NSWSC 181
Case: [2017] NSWSC 181
Decision Date: 06 March 2017

CaseChat Overview and Summary

The case of Bartlett v Weatherill (No 2) was heard in the Federal Court of Australia. The dispute arose between the plaintiffs, Bartlett, and the defendant, Weatherill. Bartlett sought damages for breach of contract and misrepresentation. The central issue was whether the court should depart from the general principle that costs follow the event, in circumstances where the plaintiff failed to obtain judgment despite establishing a breach.

The court examined the principle that the unsuccessful party in a legal proceeding is typically responsible for the costs, regardless of whether a breach was established. The plaintiffs argued for a departure from this principle, but the court found no compelling reason to do so. The established legal precedent and the equitable distribution of costs were considered, and the court determined that the plaintiffs' failure to secure a judgment meant they were the unsuccessful party.

As a result, the court held that the plaintiffs were to bear their own costs, as well as the costs of the defendant. This decision reinforced the general rule that costs follow the event and maintained the balance of legal proceedings by ensuring that the unsuccessful party is financially responsible for their litigation expenses. The court's decision underscored the importance of adhering to established legal principles in determining costs in civil litigation.

Orders