Campton v Centennial Newstan Pty Ltd [No.2] - [2014] NSWSC 177

Supreme Court

New South Wales

Medium Neutral Citation: Campton v Centennial Newstan Pty Ltd [No.2] [2014] NSWSC 177
Hearing dates: 29/11/2013
Decision date: 07 March 2014
Jurisdiction: Common Law
Before: Garling J
Decision:
(1) The defendant pay the plaintiff's costs thrown away by the vacation of the hearing commencing on 28 October 2013 on an indemnity basis.
(2) The defendant pay the plaintiff's costs of the affidavit of Mr McDonald of 1 November 2013 and the hearings of 15 November 2013 and 29 November 2013 on an indemnity basis.
(3) The costs be payable forthwith.

Catchwords: COSTS - indemnity costs - adjournment and vacation of hearing date resulting from conduct of a party - costs payable forthwith
Legislation Cited: Civil Procedure Act 2005
Legal Profession Act 2004
Uniform Civil Procedure Rules 2005
Cases Cited: Campton v Centennial Newstan Pty Ltd [2013] NSWSC 1020
Hawkesbury District Health Services Ltd v Chaker [2010] NSWSC 320
Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552
Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; (2001) 53 NSWLR 116
Sali v SPC Ltd (1993) 67 ALJR 841
White v Overland [2001] FCA 1333
Category: Procedural and other rulings
Parties: Ian Barry Campton (P)
Centennial Newstan Pty Ltd (D)
Representation: Counsel:
B Dooley SC (P)
M Joseph SC / D Stanton (D)
Solicitors:
Whitelaw Macdonald (P)
Sparke Helmore (D)

File Number(s): 2012/70316

Judgment

This judgment, which deals with whether the Court ought make an order for costs sought by one party to litigation from another, is a cautionary tale about the necessity for parties to litigation in the Supreme Court, and their lawyers, to pay close attention to the obligations contained in the Civil Procedure Act 2005 (the CP Act), the duties there articulated and case management orders made by the Court.

As these reasons will show, non-compliance with orders and case management directions which are made can be disruptive of the Court's processes, and more particularly, where that non-compliance is not inadvertent, can be costly to the party who, or which, fails to comply with the orders and directions.

It will be necessary to set out, in some greater detail than is customary, the factual circumstances which are relevant to these proceedings.

Plaintiff Seeks a Costs Order

On 24 October 2013, at a directions hearing held in advance of a final hearing estimated to take five days, the Court adjourned the proceedings and vacated the hearing dates which had been filed. It made orders permitting either party to make any application for costs.

At a hearing before the Court on 29 November 2013, the plaintiff sought an order that the defendant pay his costs thrown away by the vacation of the hearing dates on an indemnity basis.

The defendant opposed the making of that order, and submitted that the Court ought order that each party pay his, or its own, costs of, occasioned by, the adjournment, including costs thrown away by the vacation of the hearing dates.

The vacation of 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 177
Decision Date: 07 March 2014

CaseChat Overview and Summary

In the case of Campton v Centennial Newstan Pty Ltd [No.2], the court was tasked with determining the issue of indemnity costs in the context of a hearing that had been adjourned and subsequently vacated due to the conduct of a party. The parties involved were Campton, the plaintiff, and Centennial Newstan Pty Ltd, the defendant. The dispute centred around the consequences of the adjournment and vacation of a hearing date, which had resulted from the conduct of one of the parties. The case was heard in the Supreme Court of Queensland.
The central legal issue before the court was whether the party responsible for the adjournment and vacation of the hearing date should be held liable for indemnity costs. The court was required to consider the relevant principles of law concerning indemnity costs and the appropriate circumstances in which such costs might be awarded. This included examining whether the conduct of the party in question was unreasonable and whether the adjournment and vacation of the hearing date were justified.
The court held that the party responsible for the adjournment and vacation of the hearing date should be liable for indemnity costs. The reasoning was based on the principle that a party should not be allowed to benefit from their own wrongdoing, and that the conduct in question was unreasonable and unjustified. The court found that the adjournment and vacation of the hearing date had caused significant inconvenience and expense to the other party, and that the responsible party should therefore bear the costs. The court ordered that the costs be payable forthwith, reflecting the urgency and importance of the matter. This decision underscores the importance of parties acting reasonably and responsibly in the conduct of legal proceedings, and the potential consequences of failing to do so.

Orders