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Campbell v Willian

Campbell v Willian

Case [2023] NSWSC 579 1 June 2023

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Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Campbell v Willian & Anor [2023] NSWSC 579
Hearing dates: 4 May 2023
Date of orders: 1 June 2023
Decision date: 01 June 2023
Jurisdiction: Equity
Before: Hallen J
Decision:
The Court:
(1) Orders that the Applicant’s notice of motion filed on 14 February 2023 be dismissed.
(2) Orders that the Defendants pay the Applicant’s costs of filing and serving the notice of motion, the costs of preparing and serving the affidavit of 26 February 2023, the costs of the appearance, by counsel at the directions hearing on 6 March 2023 and the costs of the consideration of the correspondence sent between 6 March 2023 and 5 April 2023.
(3) Makes no other order as to the Applicant’s costs, to the intent that he is to bear his own costs of the notice of motion.
(4) Makes no order as to the Defendants’ costs of the notice of motion, to the intent that they are to bear their own costs thereof.

Catchwords:
COSTS – Costs order sought in interlocutory proceedings - Notice of motion filed by non-party to set aside subpoena – No dispute that the Defendants, who had issued and served the subpoena, would pay the reasonable expense incurred in complying with the subpoena – Before notice of motion determined by, and after discussion at a directions hearing with, the Court, the scope of documents to be produced identified in the subpoena reduced – Therefore unnecessary to determine notice of motion to set aside subpoena – No evidence of any attempt, by either party, thereafter, to resolve costs of notice of motion despite encouragement from the Court that they do so considering s 60 of the Civil Procedure Act 2005 (NSW), with the result that more substantial costs, including costs of additional evidence and having a contested hearing, incurred – Exercise of Court’s discretion - Only partial costs order made in favour of the Applicant – Otherwise no order as to costs

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Service and Execution of Process Act 1992 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Ajkay v Hickey & Co Pty Limited [2011] NSWSC 822
Ashwood v Ashwood [2023] NSWSC 208
Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194
Boscaini Investments Pty Ltd v Corporation of the City of Kensington and Norwood (1999) SASC 327
Chapman v Luminis Pty Ltd [2003] FCAFC 162
Edwards Madigan Torzillo Briggs Pty Ltd v Stack [2003] NSWCA 302
Fire Containment Pty Ltd v Robins (No 2) [2011] NSWSC 547
Hall v Donlon [2011] NSWSC 1088
Howards Storage World Pty Ltd v Haviv Holdings Pty Ltd (2010) 182 FCR 84
Kyriacou v Raphis Securities Pty Ltd (No 2) [2022] NSWSC 339
Leichhardt Municipal Council v Green [2004] NSWCA 341
M-H Engineering Solutions Pty Ltd t/as LMF Earthmoving v Michael John Rolfe & Ors [2023] NSWSC 398
Ohn v Walton (1995) 36 NSWLR 77
One.Tel Ltd v Deputy Commissioner of Taxation (2000) 101 FCR…

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.

Continue reading Campbell v Willian

Details

AGLC: Campbell v Willian [2023] NSWSC 579
Case: [2023] NSWSC 579
Decision Date: 01 June 2023

CaseChat Overview and Summary

The case of Campbell v Willian was heard in an Australian court, where the dispute centred around a motion to set aside a subpoena, filed by a non-party. The defendants, who had issued and served the subpoena, had agreed to cover the reasonable expenses incurred in complying with the subpoena. The scope of the documents to be produced under the subpoena was later reduced following discussions at a directions hearing with the court, rendering the motion to set aside the subpoena unnecessary. Despite the court's encouragement for the parties to resolve the costs of the notice of motion in accordance with section 60 of the Civil Procedure Act 2005 (NSW), neither party made any attempt to do so, resulting in more substantial costs being incurred, including costs of additional evidence and a contested hearing.

The legal issues before the court were whether the court should exercise its discretion under section 60 of the Civil Procedure Act 2005 (NSW) to order costs in the circumstances, and if so, to what extent. The court had to consider the conduct of both parties in failing to resolve the costs of the notice of motion despite the court's encouragement, as well as the reduced scope of the subpoena and the overall costs incurred.

The court exercised its discretion and made a partial costs order in favour of the Applicant. The court found that it was appropriate to make a partial costs order, given the circumstances and the failure of both parties to resolve the costs of the notice of motion. However, the court declined to make a full order as to costs, as it considered that the conduct of both parties warranted a more limited costs order. The court's decision was based on the principle that costs should follow the event, and that the parties should take responsibility for their own costs where possible. The court's reasoning demonstrates the importance of parties resolving their own costs where possible, and the consequences of failing to do so in interlocutory proceedings.

Orders