Birch v National Australia Bank Limited (No. 6)

[2014] NSWSC 1111

Supreme Court

New South Wales

Medium Neutral Citation:

Birch v National Australia Bank Limited (No. 6) [2014] NSWSC 1111

Hearing dates:

14 August 2014

Decision date:

14 August 2014

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

In proceedings 2011/382861

Order Mr Christopher Brian Birch, the fifth defendant, to pay the plaintiffs' costs of the proceedings from 16 April 2014 on an indemnity basis.

In proceedings 2013/282086

Order Mr Christopher Brian Birch, the plaintiff, to pay the defendants' costs of the proceedings on an indemnity basis.

Catchwords:

COSTS - indemnity costs orders sought by defendants - application for indemnity costs had not been foreshadowed when plaintiff joined proceedings - self represented litigant - delinquency of unsuccessful party - orders made

Cases Cited:

Birch v National Australia Bank Limited; Campbell v Illawarra Golf Club (No 5) [2014] NSWSC 949
Gersten v Minister for Immigration & Multicultural Affairs [2001] FCA 260
Liverpool City Council v Estephan Estephan (Executor and Administrator of the Estate of the Late Jocelyn Estephan) [2009] NSWCA 161
Malouf v Malouf [2006] NSWCA 83; 65 NSWLR 449
Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72

Category:

Costs

Parties:

Proceedings: 2011/382861
Christopher Robert Campbell & Vaughan Neil Strawbridge (Plaintiffs)
Illawarra Golf Club (First Defendant)
David Hawkins (Second Defendant)
Richard Dorey (Third Defendant)
Stephen Dorey (Fourth Defendant)
Christopher Brian Birch (Fifth Defendant)

Proceedings: 2013/282086
Christopher Brian Birch (Plaintiff)
National Australia Bank Limited (First Defendant)
Christopher Robert Campbell (Second Defendant
Vaughan Neil Strawbridge (Third Defendant)

Representation:

2011/382861
A Spencer (Plaintiffs)
AJ McQuillen (Defendants)

2013/282861
AJ McQuillen (Plaintiff)
A Spencer (Defendants
Solicitors:
2011/382861
Minter Ellison (Plaintiffs)

2013/382861
Minter Ellison (Defendants)

File Number(s):

2011/382861; 2013/282086

Judgment

Introduction

1. Following the publication of my reasons for judgment which concluded proceedings 2011/382861 (the Possession proceedings) and proceedings 2013/ 282086 (the Birch proceedings) on 18 July 2014 I gave the parties the opportunity to apply for costs orders if a different order from an order requiring Mr Birch to pay the Banks and the receivers' costs of both proceedings was sought: Birch v National Australia Bank Limited; Campbell v Illawarra Golf Club (No. 5) [2014] NSWSC 949 (the principal judgment).

1. Within the time stipulated, Mr Birch applied for an order that each party pay its, or his (as the case may be), costs of both proceedings and the Bank/ receivers applied for an order that Mr Birch pay their costs of both proceedings on an indemnity basis.

1. At the oral hearing on costs on 14 August 2014, I made orders in accordance with the Bank's/ receivers' application and, having regard to the hour, indicated that I would publish my reasons later. My reasons for these orders follow.

Parties' submissions

1. Mr McQuillen, who appeared at the costs hearing on behalf of Mr Birch, submitted that as Mr Birch was, in the main, a litigant who had appeared on his own behalf he ought not be "punished" by an order for indemnity costs, since he was entitled to a degree of latitude to "put his house in order", which I take to be a reference to the pleading filed to commence the Birch proceedings. Mr McQuillen further submitted that it was relevant that the Bank/ receivers had not foreshadowed an application for indemnity costs at the outset of or in April 2014, when Mr Birch was joined as a defendant to the Possession proceedings. He contended that the Bank's/ receivers' costs would have been lower if the receivers had joined Mr Birch earlier to the Possession proceedings.

1. Mr McQuillen submitted that Mr Birch had acted reasonably and that it was appropriate that he be given some indulgence, having regard to the difficulties of litigation for litigants in person. He contended that it was appropriate that there be no order as to costs, or an order that each party pay his or its own costs.

1. Mr Spencer, who appeared on behalf of the Bank/ receivers contended that it was appropriate, for the reasons given in his written submissions, that an order for indemnity costs be made against Mr Birch in both proceedings. Since my reasons largely adopt his submissions I do not propose to restate them here.

Reasons

1. The principal judgment narrates the course of the two proceedings. My conclusion as to the statement of claim in the Birch proceedings appears at [66] of the principal judgment. In [70]-[77] I made findings, which I shall not restate here, except by reference, which indicate the view I have formed about the Birch proceedings and Mr Birch's lack of any arguable defence to the Possession proceedings. It will be apparent from the principal judgment that I regarded Mr Birch's habit of retaining solicitors or barristers and dispensing with them as the case may be as tactical, rather than one which was forced on him by circumstances. I respectfully adopt what Bryson JA said in Malouf v Malouf [2006] NSWCA 83; 65 NSWLR 449 at 452:

"Courts should not go so far in accommodating the positions of unrepresented litigants as to make it an advantageous procedural step to dismiss one's lawyers or to retain none."

1. The forensic machinations in which Mr Birch engaged, which are recorded in the principal judgment, caused the Bank and the receivers to incur significant costs which were unrelated to the proper disposition of the proceedings, but which were required to be incurred in order to bring the proceedings to finality. They ought not be required to bear the expense of them.

1. It would be, in my view, wholly inappropriate to accede to Mr Birch's application that each party pay its/ his own costs. Litigation is not a game. There are consequences, including costs consequences. The real matter for decision is whether the Bank and the receivers ought have their costs on an indemnity basis.

1. In Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72, Gaudron and Gummow JJ said at 89:

'It may be true in a general sense that costs orders are not made to punish an unsuccessful party. However, in the particular circumstances of a case involving some relevant delinquency on the part of the unsuccessful party, an order is made not for party and party costs but for costs on a "solicitor and client" basis or an indemnity basis. The result is to more fully or adequately compensate the successful party for the disadvantage that it would otherwise be in the position of the unsuccessful party in the absence of such delinquency.'

1. Mr Birch is the unsuccessful party. The extent and effect of his "delinquency" is a relevant matter: see Liverpool City Council v Estephan Estephan (Executor and Administrator of the Estate of the Late Jocelyn Estephan) [2009] NSWCA 161 per Giles JA at [80]-[95]; and Gersten v Minister for Immigration & Multicultural Affairs [2001] FCA 260 at [19]. He has been delinquent in the respects set out in the paragraphs from the principal judgment referred to above. His "delinquency" extends to the whole of the Birch proceedings and the phase of the Possession proceedings from the time at which he was joined in April 2014 since it was the cause of the costs incurred by the Bank and the receivers referable to those proceedings at those times.

1. It is not to the point that the Bank and the receivers did not foreshadow an application for indemnity costs at the outset. They could hardly be expected to have had the prescience (or perhaps, better, pessimism) to anticipate that Mr Birch would be able to delay the execution of the writ of possession for so long and at such cost to them.

1. In these circumstances it is appropriate that the indemnity costs order extend to the whole of the Birch proceedings and the Possession proceedings since Mr Birch's joiner to them on 16 April 2014:

Orders

1. I make the following orders:

Proceedings 2011/382861: Order Mr Christopher Brian Birch, the fifth defendant, to pay the plaintiffs' costs of the proceedings from 16 April 2014 on an indemnity basis.

Proceedings 2013/282086: Order Mr Christopher Brian Birch, the plaintiff, to pay the defendants' costs of the proceedings on an indemnity basis.

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Decision last updated: 18 August 2014