Boyle v Coppock; Ek v Coppock

District Court

New South Wales

Medium Neutral Citation:

Boyle v Coppock & Anor; Ek v Coppock & Anor [2014] NSWDC 244

Hearing dates:

On the papers

Decision date:

18 December 2014

Before:

Levy SC DCJ

Decision:

1.The defendants are to pay the costs of the plaintiffs of the defendants' motion filed on 19 September 2014 and which was dismissed on 3 October 2014;

2.Pursuant to s 341 of the Legal Profession Act 2004 those costs are to be assessed on an indemnity basis, and the assessment of those costs may proceed forthwith;

3.Liberty to apply on 7 days notice if further or other orders are required.

Catchwords:

COSTS - resolution of dispute concerning appropriate order for costs following dismissal of defendants' motion seeking to strike out the claims by the plaintiffs - whether defendants' motion constituted action that was in the circumstances not reasonably necessary for the advancement of the defendants' interests in the litigation or was reasonably likely to unnecessarily delay or complicate the determination of the claim

Legislation Cited:

Civil Procedure Act 2005, s 56
Legal Profession Act 2004, s 341

Cases Cited:

Botany Bay Council v Latham (No 2) [2013] NSWCA 450
Leichhardt Municipal Council v Green [2004] NSWCA 341
Port Stephens Council v Theodorakis (No 2) [2006] NSWCA 143
Taheri v Vitek (No 2) [2014] NSWCA 344

Category:

Interlocutory applications

Parties:

Georgia Grace Boyle (Plaintiff)
Saskia Ellen Ek (Plaintiff)
Andrew Coppock (First defendant)
Grasso Consulting Engineers Pty Ltd (Second defendant)

Representation:

Mr P Beale (Plaintiffs)
Mr S Keizer (Defendants)
CMC Lawyers (Plaintiffs)
Jonathan Newby (Defendants)

File Number(s):

2013/167382 2013/167393

Publication restriction:

None

Judgment

Costs

1. On 3 October 2014, for reasons delivered ex-tempore, I made orders dismissing the defendants' motion filed on 19 September 2014 seeking to strike-out or to dismiss the plaintiffs' claims seeking damages for alleged negligence involving personal injury following a balcony collapse at the defendants' domestic premises.

1. Following the dismissal of the defendants' motion, the parties requested the opportunity to make submissions on the appropriate consequential costs order. The parties provided written submissions. The parties agreed to the expedient course of having the costs issue determined on the papers.

Competing arguments

1. The plaintiffs seek an indemnity costs order and an order pursuant to s 341 of the Legal Profession Act 2004, arguing that the defendants' motion was "not reasonably necessary for the [applicants'] case": Port Stephens Council v Theodorakis (No 2) [2006] NSWCA 143, at [13].

1. The plaintiffs also submitted that an order for indemnity costs should be made because the defendants rejected Calderbank offers from the plaintiffs, each dated 30 September 2014, and which asserted that the orders sought by the defendants in the motion would not be ordered in the circumstances.

1. In response, on behalf of the defendants, it was submitted that the defendants were not in a position to evaluate the plaintiffs' Calderbank offers because they did not adequately draw attention to the flaw in the defendants' motion, only the effect of that flaw. I accept that…