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

1. 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.

2. 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.

3. 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.

4. 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 basis. This, of course, was not an application in which there were multiple issues.

5. The issue that was determined by me was an issue as to whether or not there was a binding and enforceable agreement constituted in a telephone conversation between the plaintiff and the solicitor for the defendant. The plaintiff’s submission is that, faced with the alternatives of accepting that he reneged on an agreement reached with the defendant and, in so doing, giving up a claim for two years work, the plaintiff, by taking this matter to trial, as by seeking the injunction in December 2018, had made a choice that was not reasonable, nor totally generated by the plaintiff’s acts and omissions between September 2018 and the trial.

6. I accept that there has been no suggestion that the plaintiff was acting unreasonably in seeking to enforce what the plaintiff believed to be a binding agreement, but costs orders are made on the basis, generally speaking, of compensation and not as a punitive measure (Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59).

7. In my opinion, little can be taken from the fact that there was an interlocutory injunction granted, which was not opposed by the defendant back in December last year. The issue that was pressed (whether or not it was considered that the plaintiff had no real option but to press that issue) was on the basis of an allegation that there was a binding and enforceable agreement constituted in the telephone conversation.

8. The plaintiff was unsuccessful in establishing that and, in my opinion, the ordinary course should be followed and there is not a special reason warranting departure from the general rule that costs should follow the event and in those circumstances I do not vary the costs order that was made on the last occasion.

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