Belcastro v Nakhl (No 2) - [2014] NSWSC 1559

Supreme Court

New South Wales

Case Title: Belcastro v Nakhl & Ors (No 2)

Medium Neutral Citation: [2014] NSWSC 1559

Hearing Date(s): On the papers

Decision Date: 07 November 2014

Jurisdiction: Common Law

Before: Campbell J

Decision:
I confirm the costs order pronounced on 24th September 2014.

Catchwords: COSTS - costs of interlocutory motion - costs in the cause - whether costs order should be varied - where both parties enjoyed a measure of success

Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) , r 42

Cases Cited: J T Stratford Ltd v Lindley [1969] 1 WLR 1547;
Petar v Macedonian Orthodox Community Church St Petka Inc (No 2) [2007] NSWCA 142

Category: Interlocutory applications

Parties: Vincent Paul Belcastro (First Plaintiff)Joanne Belcastro (Second Plaintiff)
Liberty Mutual Insurance Company (Ninth Defendant)
Hiscox Dedicated Corporate Member Limited (Tenth Defendant)
Arch Underwriting (Eleventh Defendant)
Barbican Financial & Professional Lines Consortium (Twelfth Defendant)

Representation

- Counsel: On the papers

Solicitors: Emily Max Lawyers (Plaintiffs)
Moray & Agnew (9th - 12th Defendants)

- Solicitors: Emily Max Lawyers (Plaintiffs)
Moray & Agnew (8th â€“ 12th Defendants)

File Number(s): 2013/371629

JUDGMENT

This judgment deals with an application to vary the costs order pronounced in my judgment of 24th September 2014: (This decision assumes familiarity with my previous decision [2014] NSWSC 1305). I ordered that the costs of the motion were to be costs in the cause. In pronouncing that order I reserved liberty to each party to apply for a variation of the costs order by lodging written submissions with my chambers within 14 days, not exceeding three pages.
That liberty was exercised by SydFa's insurers (insurers) by forwarding written submissions to my chambers on 8th October. The plaintiffs' written submissions were received on 13th October in response.
The general rule is that costs follow the event unless it appears to the Court that some other order ought to be made: r 42.1 Uniform Civil Procedure Rules 2005 (NSW).
Rule 42.7 deals with interlocutory applications. It provides that:
(1) Unless the court orders otherwise, the costs of any application or other step in any proceedings, including:
(a) costs that are reserved, and
(b) costs in respect of any such application or step in respect of which no order as to costs is made,
are to be paid and otherwise dealt with in the same way as the general costs of the proceedings.
Where there is nothing to distinguish an application for costs arising from an interlocutory matter from a usual case there is much to be said for exercising the Court's discretion as to costs in a uniform manner by making what is commonly referred to as the "usual order" that being "costs in the cause" : Petar v Macedonian Orthodox Community Church St Petka Inc (No 2) [2007] NSWCA 142 at [16] - [32] see also J T Stratford Ltd v Lindley [1969] 1 WLR 1547 at 1553 per Lord Denning MR.
The basis upon which the insurers' seek to vary the…

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: [2014] NSWSC 1559
Decision Date: 07 November 2014

CaseChat Overview and Summary

The case of Belcastro v Nakhl (No 2) involved a dispute between two parties in the Federal Court of Australia. The matter pertained to a challenge regarding the costs incurred during an interlocutory motion, as well as the overall costs associated with the case. Both parties argued over whether the costs order should be varied, given that each had achieved some measure of success in the proceedings.

The central legal issue before the court was the appropriateness of varying the costs order in light of the fact that both parties had experienced partial victories in the litigation. The court needed to determine whether the standard approach to costs, which generally favours the successful party, should be adjusted in circumstances where both sides had achieved some success. This necessitated a careful examination of the principles governing costs in Australian litigation, particularly those related to the division of costs between parties who have partially succeeded.

The court, after considering the arguments presented, determined that the standard approach to costs should be applied. The judge concluded that while both parties had achieved some measure of success, the overall outcome did not warrant a variation of the costs order. The court found that the primary focus should remain on the overall success of the parties in the litigation, rather than the partial victories achieved along the way. Consequently, the costs order was upheld, with neither party receiving an adjustment based on their partial successes.

The final orders of the court reflected this decision, maintaining the original costs order as it stood. The court's reasoning underscored the importance of the overall outcome in determining costs, rather than the incremental successes achieved during the course of the litigation.

Orders