Chotiputhsilpa v Waterhouse - [2005] NSWCA 342

CITATION:
Chotiputhsilpa v Waterhouse & Anor [2005] NSWCA 342

HEARING DATE(S):
(On written submissions)

JUDGMENT DATE:

10 October 2005

JUDGMENT OF:
Beazley JA; Giles JA; Ipp JA

DECISION:
(1) The second respondent pay the appellant's costs of the trial and of the appeal; (2) The second respondent pay the costs of the first respondent in respect of 3 days of the trial proceedings; otherwise the appellant pay the costs of the first respondent of the trial and of the appeal.

CATCHWORDS:
Costs - Bullock or Sanderson order - general discretion as to costs - plaintiff liable to pay first defendant's costs - first defendant's costs increased because of additional hearing time due to second defendant's conduct - whether second defendant to pay the increased costs - ND.

CASES CITED:
Bullock v London General Omnibus Company (1907) 1 KB 264;
Gould & Anor v Vaggelas & Ors (1985) 157 CLR 215;
Sanderson v Blyth Theatre Co [1903] 2 KB 533.

PARTIES:
Suppachai Chotiputhsilpa (by his tutor Supparek Chotiputhsilpa (Appellant)
George Allan Waterhouse (First Respondent)
Roads and Traffic Authority of New South Wales (Second Respondent)

FILE NUMBER(S):
CA 40122/04

COUNSEL:
B J Gross QC & S B Dixon (Appellant)
D F Rofe QC & B Hull (First Respondent)
I G Harrison SC & W S Reynolds (Second Respondent)

SOLICITORS:
Tim Young & Associates (Appellant)
Malcolm Johns & Company (First Respondent)
Henry Davis York (Second Respondent)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 3857/00

LOWER COURT JUDICIAL OFFICER:
Twigg DCJ

CA 40122/2004
DC 3857/2000

BEAZLEY JA
GILES JA
IPP JA
Monday 10 October 2005

SUPPACHAI CHOTIPUTHSILPA by his tutor SUPPAREK CHOTIPUTHSILPA v. WATERHOUSE & ORS [NO.2]

Judgment

1 THE COURT: The Court entered judgment in this matter on 2 September 2005, in which it dismissed the appeal against the first respondent but allowed the appeal against the second respondent. The appellant now seeks the following orders in relation to costs, both of the proceedings at first instance and of the appeal:

2 The second and third of these orders are sought by way of a Bullock Order or, alternatively, a Sanderson Order: see Bullock v London General Omnibus Company (1907) 1 KB 264; Sanderson v Blyth Theatre Co [1903] 2 KB 533.

3 The first respondent's initial submission was that his costs both on the appeal and in the court below should follow the event. The purport of that submission is that the appellant should pay the first respondent's costs of the entirety of the proceedings. This will be dealt with more fully below.

4 The second respondent acknowledges that…

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: [2005] NSWCA 342
Decision Date: 10 October 2005

CaseChat Overview and Summary

In *Chotiputhsilpa v Waterhouse*, the Court of Appeal of New South Wales considered an appeal concerning the allocation of costs between parties in a trial. The dispute involved a plaintiff, a first defendant, and a second defendant, with the core issue revolving around whether the second defendant should bear the increased costs incurred by the first defendant due to the second defendant's conduct during the trial.

The primary legal issues before the court were whether a *Bullock* or *Sanderson* order was appropriate in the circumstances, and how the general discretion as to costs should be exercised. Specifically, the court had to determine if the second defendant's actions had caused the first defendant's costs to increase, and if so, whether the second defendant should be ordered to pay those increased costs, rather than the plaintiff.

The Court of Appeal applied the principles governing the court's broad discretion in awarding costs. It found that the second defendant's conduct had indeed led to additional hearing time and thus increased costs for the first defendant. Consequently, the court determined that it was just and appropriate to order the second defendant to pay a portion of the first defendant's costs.

The court ordered that the second respondent pay the appellant's costs of both the trial and the appeal. Furthermore, the second respondent was ordered to pay the costs of the first respondent specifically in respect of three days of the trial proceedings. In all other respects, the appellant was ordered to pay the costs of the first respondent for the trial and the appeal.

Orders

Orders of the court

(1) The second respondent pay the appellant's costs of the trial and of the appeal; (2) The second respondent pay the costs of the first respondent in respect of 3 days of the trial proceedings; otherwise the appellant pay the costs of the first respondent of the trial and of the appeal.

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.

CITATION:	Chotiputhsilpa v Waterhouse & Anor [2005] NSWCA 342
HEARING DATE(S):	(On written submissions)
JUDGMENT DATE:	10 October 2005
JUDGMENT OF:	Beazley JA; Giles JA; Ipp JA
DECISION:	(1) The second respondent pay the appellant's costs of the trial and of the appeal; (2) The second respondent pay the costs of the first respondent in respect of 3 days of the trial proceedings; otherwise the appellant pay the costs of the first respondent of the trial and of the appeal.

CATCHWORDS:	Costs - Bullock or Sanderson order - general discretion as to costs - plaintiff liable to pay first defendant's costs - first defendant's costs increased because of additional hearing time due to second defendant's conduct - whether second defendant to pay the increased costs - ND.
CASES CITED:	Bullock v London General Omnibus Company (1907) 1 KB 264; Gould & Anor v Vaggelas & Ors (1985) 157 CLR 215; Sanderson v Blyth Theatre Co [1903] 2 KB 533.
PARTIES:	Suppachai Chotiputhsilpa (by his tutor Supparek Chotiputhsilpa (Appellant) George Allan Waterhouse (First Respondent) Roads and Traffic Authority of New South Wales (Second Respondent)
FILE NUMBER(S):	CA 40122/04
COUNSEL:	B J Gross QC & S B Dixon (Appellant) D F Rofe QC & B Hull (First Respondent) I G Harrison SC & W S Reynolds (Second Respondent)
SOLICITORS:	Tim Young & Associates (Appellant) Malcolm Johns & Company (First Respondent) Henry Davis York (Second Respondent)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 3857/00
LOWER COURT JUDICIAL OFFICER:	Twigg DCJ