Blashki v Utara

[2003] NSWSC 1111

CITATION:	Blashki v Utara [2003] NSWSC 1111
HEARING DATE(S):	25 March 2003
JUDGMENT DATE:	28 November 2003
JURISDICTION:	Equity
JUDGMENT OF:	Hamilton J
DECISION:	Order that the defendant pay the plaintiff's costs of the proceedings.
CATCHWORDS:	PROCEDURE [553] - Costs - General rule - Costs follow the event - Costs of whole action - Generally - Plaintiff generally successful - Defendant wins on some issues - Issues intertwined.
CASES CITED:	Blashki v Utara [2002] NSWSC 1201 Blashki v Utara [2003] NSWSC 210 Waters v P C Henderson (Australia) Pty Ltd NSWCA 6 July 1994 unreported
PARTIES :	Phillip Sydney Blashki (P) Ida Bagus Utara (D)
FILE NUMBER(S):	SC 4686/99
COUNSEL:	S J Burchett (P) G A Sirtes (D)
SOLICITORS:	Andrews (P) Burn & Company (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

FRIDAY, 28 NOVEMBER 2003

4686/99 PHILLIP SYDNEY BLASHKI v IDA BAGUS UTARA

JUDGMENT

1 HIS HONOUR: Application is made on behalf of the defendant for a special order for costs consequent on judgments of mine in these proceedings: see Blashki v Utara [2002] NSWSC 1201 (“my judgment”) and Blashki v Utara [2003] NSWSC 210 (“my judgment”). The application was argued on 25 March 2003 and judgment reserved but on the basis that further written submissions would be received. It is only in the last few days that I have been informed that there are to be no further written submissions.

2 The plaintiff contends that the event of the proceedings was in his favour and that the costs should follow the event. The defendant contends that this is one of the cases in which what is undoubtedly the general rule should be departed from. The defendant submits that the basis on which the plaintiff won (namely, that the transaction between the parties was one of loan) was raised by the plaintiff only by an amendment sought late in the proceedings; previously to that the plaintiff contended that the relevant property was held on trust and specifically denied that there was a transaction of loan. The exception under which he seeks to establish his entitlement to a special costs order is that this was a case in which there were multiple and discrete issues and that he had succeeded on a number of those issues. This submission fell into two parts. The first was that within the principal issue as to entitlement to a share in the property there were a number of sub issues and on several of those he was successful. The second was that there was a separate claim made on a guarantee and on that the plaintiff failed entirely.

3 The principles relating to special orders for costs in cases where there are multiple issues were adumbrated in the Court of Appeal in Waters v P C Henderson (Australia) Pty Ltd NSWCA 6 July 1994 unreported. In that case Mahoney JA said:

“Second, I think there is good sense in not interfering with costs orders because quite often - and the present case is an illustration of this - the difficulty that arises in the making of the costs order lies in the application of settled principles to the facts of a particular case. It is difficult to assign particular amounts of costs to particular issues and it is difficult to decide, in retrospect, how much time was occupied upon one issue or the other and who was the successful party in relation to each of them. These are matters which a judge who has dealt with the matter may determine by his impression of the case as it was before him; an appeal court is in a more difficult situation in deciding such matters.
……
In the notes to the Rules, Pt52.11.2, the following appears:

‘Where the proceedings involve multiple issues the application of the rule that costs follow the event may involve hardship where a party succeeds on some issues and yet fails on others. Particularly is this so where, for example, a defendant succeeds on issues that occupied the bulk of the time taken by the proceedings. Nevertheless unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed.’


Reference is made to cases, some of which I have considered. They appear generally to support the principle which is stated in the Practice. I think that was the principle to which his Honour had regard in the present case.

I do not think that it would have been appropriate for his Honour to attempt to determine which issues were won by particular parties, to what extent they were won, and what was the amount of time spent on each of the issues so as to apportion costs accordingly. I think that would have been contrary to the trend of decision in relation to the exercise of discretion as to costs.”

In the statements of principle in this passage there are at least three (perhaps overlapping) elements: first, that to sound in a special order for costs an issue must be truly discrete; second, that it must be possible for the Judge readily to identify a separate amount of time expended on that issue; third, that, in general, the amount of time involved must be substantial.

4 Concerning the sub-issues within the principal issue the plaintiff’s submissions are as follows. First, the issue (of loan) on which the plaintiff succeeded was raised only late in the proceedings and the plaintiff should be regarded as having won on and should have the costs of the principal issue up to that point. However, as I observed during the course of argument, there was always in reality the same issue underlying the plaintiff’s case however put, namely, that the plaintiff always said that there was a deal whereby he was entitled to half the profits of the transaction and the defendant always denied that. This was always the driver and main subject matter of the proceedings and the issue, whether framed as one of trust or one of loan, always proceeded on the same body of evidence. In my view, there is nothing to found a special costs order in the submission based on the late amendment. So far as concerns the submissions concerning other subdivisions within the principal issue, they fall within the principle that for special costs provision to be made the issue must really be discrete and it must be readily possible for the Judge to estimate what part of the proceedings should be attributed to that discrete issue. In my view those conditions are not met in relation to the other sub issues propounded and no special order should be made by reference to them.

5 The second matter is the question of the guarantee. The considerations concerning that are somewhat different. That is in reality a discrete matter turning on totally different considerations and a separate body of evidence. But in that case the time taken by the issue was so small that it should be regarded as minimal and insufficient to justify the making of a separate order as to costs.

6 In those circumstances there is nothing to justify departure from the general rule and the order as to costs will be that the defendant pay the plaintiff’s costs of the proceedings.

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Last Modified: 12/05/2003