Chapman v Dickinson (No 3) - [2021] NSWDC 63

District Court

New South Wales

Medium Neutral Citation: Chapman v Dickinson (No 3) [2021] NSWDC 63
Hearing dates: 19 February 2021
Date of orders: 23 February 2021
Decision date: 23 February 2021
Jurisdiction: Civil
Before: P Taylor SC DCJ
Decision:
(1)   The defendants pay the plaintiff’s costs of the proceedings, such costs to include the costs of the applications determined today and 50% of the costs of and incidental to the applications determined 29 May 2020.
(2)   The judgment be stayed pending determination of the appeal on terms that:
(a)   15% of the judgment sum be paid by the defendants to the plaintiff but only if the plaintiff’s solicitors undertake inter partes to repay, in the event of a successful appeal, any moneys received from this part of the judgment on account of their costs to date; and
(b)   the appeal be prosecuted by the defendants with all reasonable expedition.

Catchwords:
COSTS — Party/Party — Exceptions to general rule that costs follow the event — Party seeking indulgence or dispensation of the court
CIVIL PROCEDURE — Stay of proceedings — Pending appeal

Legislation Cited:
Civil Procedure Act 2005, s 135
District Court Act 1973, s 4, s 156
Uniform Civil Procedure Rules 2005, r 14.18, r 42.1, r 42.7

Cases Cited:
Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685
Andrews v John Fairfax & Sons Ltd [1979] 2 NSWLR 184
Chapman v Dickinson [2020] NSWDC 269
Chapman v Dickinson (No 2) [2020] NSWDC 847
Chen v Lym International Pty Ltd [2009] NSWCA 121
McBride v Sandland (No 2) (1918) 25 CLR 369
TCN Channel 9 v Antoniadis (No 2) (1999) 48 NSWLR 381; [1999] NSWCA 104
Tomlinson v Ramsey Food Processing [2015] HCA 28
Trad v Harbour Radio Pty Ltd [2010] NSWCA 41
Windsurfing International Inc v Petit (1987) AIPC 90-441

Texts Cited:
Ritchie’s Uniform Civil Procedure NSW

Category: Principal judgment
Parties: Christopher Chapman (plaintiff)
Justin Dickinson (first defendant)
Annette Patrick trading as White Heavy Haulage (second defendant)
Representation:
Counsel:
Mr R Goodridge (plaintiff)
Mr A J Parker (defendants)
Solicitors:
Firths - The Compensation Lawyers (plaintiff)
McInnes Wilson Lawyers NSW (defendants)

File Number(s): 2017/265257
Publication restriction: None

Judgment

Introduction

Christopher Chapman was successful in proceedings for damages for negligence against Annette Patrick and Justin Dickinson. Mr Chapman seeks an order for costs, which, save for one aspect, is not disputed. That aspect concerns an unsuccessful strike out application Mr Chapman made prior to trial. [1] Costs of that application were reserved.
1. Chapman v Dickinson [2020] NSWDC 269.
The costs of the strike out application are sought by Mr Chapman on an indemnity basis. The defendants, Ms Patrick and Mr Dickinson, also seek costs of the application, not on the indemnity basis, and costs thrown away by reason of the motion. If there are costs thrown away, they seem to be incidental to the motion.
The real dispute is who should pay the costs of the strike out application, and if the defendants should…

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 Chapman v Dickinson (No 3)

Details

AGLC: Chapman v Dickinson (No 3) [2021] NSWDC 63
Case: [2021] NSWDC 63
Decision Date: 23 February 2021

CaseChat Overview and Summary

Chapman v Dickinson (No 3) involves a dispute over the allocation of costs between parties in a legal proceeding. The case was heard in the relevant court, which made a determination on the legal issues surrounding the costs and the stay of proceedings pending an appeal. The court had to decide whether the defendants should bear the plaintiff's costs for the proceedings, including specific applications, and whether the judgment should be stayed pending the appeal.

The central legal issues were whether the court should grant an exception to the general rule that costs follow the event and whether the proceedings should be stayed pending the appeal. The court considered the circumstances under which a party might seek indulgence or dispensation regarding costs and the conditions under which a stay of proceedings might be appropriate. The court also examined the terms under which such a stay might be granted, including the payment of a portion of the judgment sum and the requirement for the appeal to be prosecuted with reasonable expedition.

The court ruled that the defendants should pay the plaintiff's costs for the proceedings, including the costs of specific applications. The court also decided that the judgment should be stayed pending the appeal, provided certain conditions were met. These conditions included the payment of 15% of the judgment sum by the defendants to the plaintiff, subject to the plaintiff’s solicitors undertaking to repay any moneys received if the appeal is successful, and the requirement that the appeal be prosecuted with reasonable expedition.

The final orders of the court mandated that the defendants pay the plaintiff's costs for the proceedings, including the costs of specific applications. Additionally, the judgment was to be stayed pending the appeal, with the aforementioned conditions. The court's decision aimed to balance the interests of both parties while ensuring that the appeal was pursued efficiently.

Orders

Orders of the court

(1) The defendants pay the plaintiff’s costs of the proceedings, such costs to include the costs of the applications determined today and 50% of the costs of and incidental to the applications determined 29 May 2020.

(2) The judgment be stayed pending determination of the appeal on terms that:

(a) 15% of the judgment sum be paid by the defendants to the plaintiff but only if the plaintiff’s solicitors undertake inter partes to repay, in the event of a successful appeal, any moneys received from this part of the judgment on account of their costs to date; and

(b) the appeal be prosecuted by the defendants with all reasonable expedition.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Chapman v Dickinson (No 3) [2021] NSWDC 63
Hearing dates:	19 February 2021
Date of orders:	23 February 2021
Decision date:	23 February 2021
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1) The defendants pay the plaintiff’s costs of the proceedings, such costs to include the costs of the applications determined today and 50% of the costs of and incidental to the applications determined 29 May 2020. (2) The judgment be stayed pending determination of the appeal on terms that: (a) 15% of the judgment sum be paid by the defendants to the plaintiff but only if the plaintiff’s solicitors undertake inter partes to repay, in the event of a successful appeal, any moneys received from this part of the judgment on account of their costs to date; and (b) the appeal be prosecuted by the defendants with all reasonable expedition.
Catchwords:	COSTS — Party/Party — Exceptions to general rule that costs follow the event — Party seeking indulgence or dispensation of the court CIVIL PROCEDURE — Stay of proceedings — Pending appeal
Legislation Cited:	Civil Procedure Act 2005, s 135 District Court Act 1973, s 4, s 156 Uniform Civil Procedure Rules 2005, r 14.18, r 42.1, r 42.7
Cases Cited:	Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685 Andrews v John Fairfax & Sons Ltd [1979] 2 NSWLR 184 Chapman v Dickinson [2020] NSWDC 269 Chapman v Dickinson (No 2) [2020] NSWDC 847 Chen v Lym International Pty Ltd [2009] NSWCA 121 McBride v Sandland (No 2) (1918) 25 CLR 369 TCN Channel 9 v Antoniadis (No 2) (1999) 48 NSWLR 381; [1999] NSWCA 104 Tomlinson v Ramsey Food Processing [2015] HCA 28 Trad v Harbour Radio Pty Ltd [2010] NSWCA 41 Windsurfing International Inc v Petit (1987) AIPC 90-441
Texts Cited:	Ritchie’s Uniform Civil Procedure NSW
Category:	Principal judgment
Parties:	Christopher Chapman (plaintiff) Justin Dickinson (first defendant) Annette Patrick trading as White Heavy Haulage (second defendant)
Representation:	Counsel: Mr R Goodridge (plaintiff) Mr A J Parker (defendants) Solicitors: Firths - The Compensation Lawyers (plaintiff) McInnes Wilson Lawyers NSW (defendants)
File Number(s):	2017/265257
Publication restriction:	None