Citigroup Pty Limited v Middling (No.2) - [2014] NSWSC 651

Supreme Court

New South Wales

Medium Neutral Citation: Citigroup Pty Limited v Middling (No.2) [2014] NSWSC 651
Hearing dates: On the papers
Decision date: 22 May 2014
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1) Order the defendant to pay the plaintiff's and the first cross-defendant's costs occasioned by and thrown away by the amendment, including the costs of the hearing on 22 and 23 April 2014 and the costs of the adjournment of the hearing of the matter, on an indemnity basis.
(2) Stand over the question whether Mr Quy and Mr Elliott ought pay the plaintiff's and the first cross-defendant's costs occasioned by and thrown away by the amendment, including the costs of the hearing on 22 and 23 April 2014 and the costs of the adjournment of the hearing of the matter, on an indemnity basis before me until after the determination or other resolution of the substantive proceedings or further order.
(3) Grant liberty to restore the matter before me for determination of this question when the circumstances set out in (2) above have arisen.

Catchwords: COSTS - question whether personal costs order ought be made against defendant's legal representatives ought be reserved until the determination of the proceedings - position where matters of a privileged nature would need to be disclosed to the potential prejudice of one party - whether it is desirable for judge to review such privileged material without disclosing it to the other party - desirability of judge who heard oral evidence on adjournment application determining question rather than trial judge
Cases Cited: Citigroup Pty Limited v Middling [2014] NSWSC 474
Category: Costs
Parties: Citigroup Pty Limited (Plaintiff/2nd Cross Defendant)
Dennis James Middling (Defendant/Cross-Claimant)
Perpetual Trustees Victoria Limited (First Cross-Defendant)
Representation: Counsel:
AR Vincent (Plaintiff)
S Wheelhouse SC/D Elliott (Defendant/Cross-Claimant)
M Ashhurst SC/P Newton (First Cross-Defendant)
Solicitors:
Norton Rose Fulbright Australia (Plaintiff/2nd Cross Defendant)
Quy Lawyers (Defendant/Cross-Claimant)
Kemp Strang (First Cross-defendant)

File Number(s): 2013/47580
Publication restriction: Nil

Judgment

Introduction

This matter was listed for final hearing for 3 days commencing 22 April 2014. Mr Middling, the defendant, applied for leave to amend his defence, which resulted in the matter having to be adjourned. On the amendment application I heard evidence from Mr Quy, the defendant's solicitor, as a result of which I directed Mr Quy and Mr Elliott, the junior barrister instructed by Mr Quy on behalf of the defendant, to file written submissions as to why a personal costs order ought not be made against each of them in respect of the costs of the amendment and the costs thrown away by the adjournment: Citigroup Pty Limited v Middling [2014] NSWSC 474.

Parties' submissions

Both Mr Quy and Mr Elliott submitted that I ought not determine whether a personal costs order ought be made in advance of the hearing, since such determination would require privileged information to be disclosed, which could be to the detriment of Mr Middling, the defendant. They also submitted that such determination would give rise to…

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.

Keep reading for free

Create a free CaseChat account to read Citigroup Pty Limited v Middling (No.2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] NSWSC 651
Decision Date: 22 May 2014

CaseChat Overview and Summary

The case of Citigroup Pty Limited v Middling (No.2) involved a dispute between the parties, with the primary focus being on the issue of whether a personal costs order should be made against the defendant's legal representatives. This matter was brought before the court to determine the appropriate course of action regarding the costs and the timing of the decision. The court was also required to consider whether matters of a privileged nature would need to be disclosed, potentially causing prejudice to one party. Furthermore, the desirability of the judge who heard the oral evidence on the adjournment application making the decision rather than the trial judge was a key legal issue.

The court examined the circumstances under which a personal costs order should be made against the defendant's legal representatives. The court noted that the question of such an order should be reserved until the determination of the proceedings. This was to ensure that any privileged material would not need to be disclosed, which could potentially prejudice one party. The court also considered whether it was desirable for the judge to review privileged material without disclosing it to the other party. The court found that it was preferable for the judge who heard the oral evidence on the adjournment application to determine the question, rather than the trial judge. This approach ensured a more informed and balanced decision-making process.

In light of the court's reasoning, the decision was made to reserve the question of a personal costs order against the defendant's legal representatives until the determination of the proceedings. This approach aimed to prevent any potential prejudice to one party due to the disclosure of privileged material. The court also determined that it was desirable for the judge who heard the oral evidence on the adjournment application to make the decision, rather than the trial judge. This ensured a more informed and balanced decision-making process. As a result of this decision, the court did not make any final orders in the case at that time.

Orders