Beaven v Fink (No. 2)

[2009] NSWDC 356

CITATION:	Beaven v Fink (No. 2) [2009] NSWDC 356
HEARING DATE(S):	10-13 February 2009, 16-17 February 2009
EX TEMPORE JUDGMENT DATE:	25 August 2009
JURISDICTION:	District Court - Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	Costs Hearing Results: 1. The application for a stay is refused. 2. The 2nd and 3rd defendants are to pay the plaintiff’s costs of trespass, conversion and slander involving the 2nd and 3rd defendants 3. The plaintiff is to pay the costs of Dr Thomas Fink of the claims against him in trespass and conversion 4. In each case costs are to be paid on an Ordinary basis
CATCHWORDS:	COSTS - Arguements consequent to decision in proceedings - Applications for indemnity costs and proportionality rejected - Application for stay refused
PARTIES:	Robin Newton Beaven (First Plaintiff) Mildred Josephine Beaven (Second Plaintiff) Alexander Edward Beaven (Third Plaintiff) Andre Fink (Second Defendant) William Bertrand Rietveld (Third Defendant) Thomas Fink (Fourth Defendant)
FILE NUMBER(S):	406/07
SOLICITORS:	Hunt & Hunt (for First, Second and Third Plaintiffs) The Crown Solicitor (First Defendant) Makinson & d'Apice Lawyers (for Second, Third and Fourth Defendants)

JUDGMENT- on costs

1 In this matter reasons for judgment were published on 19 August 2009 and the proceedings adjourned to today’s date to deal with the issue of costs.

2 There were four defendants to the action. Proceedings against the first defendant were settled on the first day upon which the matter was listed for hearing and the first defendant played no further part in the proceedings.

3 In respect of the fourth defendant, Doctor Thomas Fink, I ordered a verdict in his favour on the claims against him in trespass and conversion. In respect of his costs I am asked to make orders that each party pay their own costs. This is because whilst I found that he trespassed on the plaintiff’s property, no orders could be made against him since his trespass was not pleaded. It was said that this was a result of confusion into which the plaintiffs were led through the second defendant’s refusal to identify Doctor Fink. I do not accept that argument. It seems to me that if he was joined as a defendant and the pleadings were not sufficient to warrant an order against him, then the plaintiffs must bear responsibility and they must pay his costs on the claims against Doctor Thomas Fink in trespass and conversion.

4 As far as the second and third defendants are concerned, orders were made against them. I am asked to make orders on an indemnity basis in respect of the proceedings for a number of reasons. It was apparent through the course of the proceedings that the relationship between the second and third defendants and the plaintiff were in an appalling state and that nobody was talking to anyone. The arguments between the parties that I have heard this morning concerning the way in which the interlocutory steps progressed did not persuade me that either party was at greater fault than the other and in those circumstances I do not think any order for indemnity costs is warranted in respect of the interlocutory steps.

5 As far as the hearing itself was concerned, indemnity costs are not sought on the basis that an offer of compromise was made. Indeed the evidence suggests that neither party made any offers, although it is said that the defendants sought to enter into negotiations without success.

6 The hearing was extended by additional evidence called from the second and third defendants and had that material been contained in affidavit evidence, then I am convinced that the six day hearing could have been contained. However, I have already ordered aggravated damages in relation to the way in which those two defendants treated the plaintiffs and their property. I do not think that an order for indemnity costs is warranted.

7 The defendants ask that I set aside orders made in respect of interlocutory applications relating to identification of the son to whom, Mr Andre Fink referred in evidence given in the Local Court. It is said that, having regard to the finding relating to Doctor Thomas Fink, I should reconsider those orders. I have done so. I am satisfied that these proceedings could have been advanced more smoothly and with less rancour, had a simple answer been given to a simple question without the need for a formal application to this court and I will not change those orders.

8 The defendants argue for proportionality. They argue that the proceedings were trivial. They point to provisions of the rules and the Local Court practice that set limits on the costs that may be awarded when the quantum of the award is slight.

9 In this case I do not think it could be argued that the proceedings could have been run in the Local Court. They involved issues of trespass, conversion and slander. That the proceedings went to six days of hearing attests to the complications that were raised on both sides in respect of their claims and assertions and counter-assertions. I see no warrant in those circumstances for proportionality.

10 I am asked to stay the orders on the basis, without any evidence to support it, that the second defendant, who accepted vicarious responsibility for the third defendant is impecunious. I am informed without evidence that he is without income, although he has substantial assets. The amount involved in the verdict was $21,571. It is a very small amount. No suggestion was put to me that if that amount is paid it would not be recoverable if any appeal were to succeed. There is apparently no decision at this stage on whether an appeal will be pursued. In those circumstances I am not prepared to grant the stay.

11 The orders that I make are as follows:

1. The application for the stay is refused.

2. The second and third defendants are to pay the plaintiff’s costs of the proceedings in trespass, conversion and slander, involving the second and third defendants.

3. The plaintiffs are to pay the costs of Doctor Thomas Fink on the claims against him in trespass and conversion.

4. In each case costs are to be paid on an ordinary basis as agreed or assessed.

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