Cohen v Morgans - [2019] NSWSC 1751

Supreme Court

New South Wales

Medium Neutral Citation: Cohen v Morgans [2019] NSWSC 1751
Hearing dates: On the papers and 6 December 2019
Date of orders: 06 December 2019
Decision date: 06 December 2019
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
Refuse to vary the costs order made on 22 November 2019.

Catchwords: COSTS –variation to a costs orders sought by the plaintiff – held no special reason warranting departure from the general rule that costs should follow the event – costs order not varied.
Cases Cited: Cohen v Morgans [2019] NSWSC 1634
Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59
McLaughlin v Dungowan Manly Pty Limited [2010] NSWSC 187
Category: Costs
Parties: Andrew Cohen (Plaintiff)
Nada Morgans (Defendant)
Representation:
Counsel:
H El-Hage (Plaintiff)
GA Sirtes SC with LM Johnston (Defendant)
Solicitors:
Andrew Cohen Solicitor (Plaintiff)
Somerville Legal (Defendant)

File Number(s): 2018/00385521
Publication restriction: Nil

Judgment

HER HONOUR: On 22 November 2019, I published reasons for my decision in these proceedings (see Cohen v Morgans [2019] NSWSC 1634). I dismissed a summons filed on 14 December 2018 and I made orders in relation to costs on the basis that costs should follow the event. I also referred the parties to a court-annexed mediation. That court-annexed mediation has been scheduled for 3 February 2020.
When I published my reasons, an application was foreshadowed by the defendant to seek a special costs order. That application was not pursued but the plaintiff instead has, pursuant to directions that I made on the last occasion, provided written submissions seeking a variation to the costs orders that I made on the basis of the matters set out in the submissions. Those submissions in effect track through the chronology of events and circumstances in which the plaintiff submits that the plaintiff had no real choice but to commence these proceedings and in which the plaintiff points to issues in respect of which there was, it is said, some uncertainty as to the basis on which the application was being brought.
Amongst other things, the plaintiff points to the fact that the plaintiff obtained an injunction last December in relation to the costs assessment process and to the issues that led, it would seem, to the defendant not proceeding with the agreement in principle that had been reached in relation to a compromise of the costs claim including a misunderstanding as to whether or not the plaintiff had reneged on an agreement or whether the defendant had reneged on an agreement orally reached in principle between them.
Reference is made to the decision in McLaughlin v Dungowan Manly Pty Limited [2010] NSWSC 187 in which I referred to cases where multiple issues were involved in proceedings and where departure from the general rule might be warranted in those circumstances and to the fact that it has been said that where it is appropriate to entertain the process of apportioning costs, that exercise will be carried out on a relatively broad brush…

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 Cohen v Morgans

Details

AGLC: Cohen v Morgans [2019] NSWSC 1751
Case: [2019] NSWSC 1751
Decision Date: 06 December 2019

CaseChat Overview and Summary

Cohen, the plaintiff, sued Morgans, the defendant, in the Supreme Court of New South Wales, seeking damages for breach of contract and seeking variation of a costs order. The case centred on whether the court should deviate from the established principle that costs should follow the event, which meant that the losing party typically pays the winning party's legal costs. Cohen applied to vary a previous costs order, arguing that special circumstances warranted a departure from the usual rule.

The court needed to determine if there were exceptional reasons justifying a variation of the costs order. Cohen argued that the defendant's conduct during the proceedings warranted a departure from the standard costs order. The court assessed Cohen's arguments against the well-established legal principle that costs should generally follow the event, unless there was a compelling reason to do otherwise.

After careful consideration, the court found no special reason that justified a departure from the usual rule. The court held that the defendant's conduct, while perhaps regrettable, did not meet the threshold for exceptional circumstances that would allow for a variation of the costs order. Consequently, the application to vary the costs order was dismissed, and the order that costs follow the event was upheld.

The final orders of the court confirmed that the defendant, Morgans, was not required to pay any additional costs beyond those already determined. The plaintiff, Cohen, was directed to bear the costs of the application to vary the costs order. The decision reinforced the principle that the general rule of costs following the event should not be lightly departed from, except in the most exceptional of circumstances.

Orders