Daly v Dicker (costs application)
[2001] NSWSC 690
•16 August 2001
CITATION: Daly v Dicker (costs application) [2001] NSWSC 690 FILE NUMBER(S): SC 3923/97 HEARING DATE(S): Written submissions to 20 July 2001 JUDGMENT DATE:
16 August 2001PARTIES :
James Brendan Daly (Plaintiff)
Ruth Diana Dicker (Defendant)JUDGMENT OF: Master McLaughlin
COUNSEL : G.B. Evans (Plaintiff)
C.M. Simpson (Defendant)SOLICITORS: Gillis Delaney Brown (Plaintiff)
Newnhams Solcitors (Defendant)CATCHWORDS: Costs - Discretion of Court - Cross-claim by Defendant was substantially reduced at commencement of hearing - Relief to which Plaintiff was entitled was not significantly different from relief sought by Defendant in amended cross-claim - Plaintiff substantially successful - Defendant substantially unsuccessful - Entitlement to costs should not be based upon a mere accounting exercise. LEGISLATION CITED: Supreme Court Act 1970 DECISION: I order that the Defendant pay the costs of the Plaintiff.
SUPREME COURT OF
NEW SOUTH WALES
EQUITY DIVISION
MASTER McLAUGHLIN
Thursday, 16 August 2001
JUDGMENT (ON COSTS)
1 MASTER: My reasons for judgment herein were published on 28 March 2001.
2 Subsequently, on 12 April 2001, short minutes of order were brought in to give effect to the conclusions expressed in those reasons for judgment, and orders were made in accordance with those short minutes.
3 In the course of my reasons for judgment (73-79) I expressed my views concerning costs and my conclusion that the Defendant should pay the costs of the Plaintiff.
4 However, since the matter of costs had not been expressly argued at the hearing, Counsel for the Defendant requested an opportunity to make submissions as to costs. In consequence, the orders made on 12 April 2001 did not deal with costs, and I allowed the parties to lodge written submissions in that regard.
5 Those written submissions from Counsel for the respective parties will be retained in the Court file.
6 The parties are content that I should deal with the matter of costs in the light of the written submissions of Counsel, without the necessity for any further appearance herein.
7 In the course of my reasons for judgment of 28 March 2001 I stated that the Plaintiff had been substantially successful in obtaining the relief which he sought in the amended statement of claim; and that the Defendant had been substantially unsuccessful in the first of the prayers for relief sought in the cross-claim as originally filed (that in respect to the Potts Point unit) and had been totally unsuccessful in the second and third prayers for relief in that pleading (being in respect to the Trinity Beach unit and in respect to the BMW motor vehicle). Further, I referred to the fact that the Defendant must pay to the Plaintiff the sum of $4,440 in respect to the equalisation of the loan accounts in Truewane, and must pay to the Plaintiff her outstanding indebtedness of $5,500 in respect to the 1993 loan.
8 I stated that until the commencement of the hearing and the filing of the amended defence and cross-claim the Plaintiff was entitled to consider that the Defendant was persisting in the claims for relief set forth in the prayers to her cross-claim filed on 2 December 1997, and to prepare his case accordingly. I observed that the fact that at the outset of the hearing the Defendant substantially reduced the nature of the claims being made by her, with the consequence that, ultimately, the relief to which I found the Plaintiff to be entitled was not significantly different from the relief sought by the Defendant in her amended cross-claim, was not in my view determinative of the appropriate costs order which should be made.
9 The Defendant however submits that the proper approach to the question of costs is to look to the effect, in money terms, of the orders ultimately made and to compare that effect with the amount, in money terms, originally claimed by the Plaintiff and with the amount, in money terms, originally claimed by the Defendant.
10 Upon that approach (in accordance with the calculations set forth in his written submissions) Counsel for the Defendant submitted that (disregarding the orders in respect to Trinity Beach, which were said to favour the Defendant), the Plaintiff secured an outcome which was $108,600 less than the case which the Defendant came to meet. Further, that the outcome for the Defendant (again excluding what was said to be the favourable outcome she secured in respect to Trinity Beach) was $60,000 less than she sought in her amended pleading. In consequence, so it was submitted, it would not be proper for the Court to order the Defendant to pay the costs when she was in fact substantially more successful than the Plaintiff on the cases which each party finally pleaded (since the Defendant received only $60,000 less than she was seeking, whilst the Plaintiff received $108,600 less than he was seeking).
11 Counsel for the Plaintiff has, in his written submissions, characterised the foregoing approach by the Defendant as “an exercise in creative accountancy”. I am inclined to agree with that description.
12 The principle that costs follow the event is recognised in Part 52A rule 11 of the Supreme Court Rules. Nevertheless, that principle must be applied in the light of the very wide discretion vested in the Court under section 76(1) of the Supreme Court Act 1970 (that discretion itself, however, being subject to the Rules) and the discretion contained in Part 52A rule 11 itself.
13 In the instant case, the orders ultimately made have the practical result firstly of requiring payment to be made by the Defendant to the Plaintiff, and secondly of dismissing the cross-claim of the Defendant.
14 It was necessary for the Plaintiff to come to Court in order to obtain his remedy, even though he ultimately received somewhat less than he originally claimed. By the same token, the Defendant received, in practical or money terms, nothing of what she had originally claimed, and her cross-claim was dismissed.
15 In cases such as the present a resolution of the question of which party is entitled to costs should not be approached on the basis of a mere accounting exercise.
16 Despite the careful and detailed submissions by Counsel for the Defendant, it is still the fact that ultimately the Plaintiff was substantially successful, and the Defendant was substantially unsuccessful.
17 It follows, in my conclusion, that the Defendant must pay the costs of the Plaintiff.
18 I make the following order:
(1). I order that the Defendant pay the costs of the Plaintiff.
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