Dr Praneal Dutt Sharma v Dr Phillip Segal and Dr Greg Chen [Costs]

[2017] NSWSC 973

Supreme Court

New South Wales

Medium Neutral Citation:	Dr Praneal Dutt Sharma v Dr Phillip Segal and Dr Greg Chen [Costs] [2017] NSWSC 973
Hearing dates:	By written submission
Decision date:	21 July 2017
Jurisdiction:	Equity - Commercial List
Before:	Hammerschlag J
Decision:	Plaintiffs are to pay the costs of the proceedings of the first and third defendants.
Catchwords:	COSTS – where adjudication of a single issue ultimately determines the outcome of proceedings and cross-claims are not pressed – HELD – no reason to depart from the primary rule that costs follow the event.
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Bullock v London & General Omnibus Co [1907] 1 KB 264 Dr Praneal Dutt Sharma v Dr Phillip Segal and Dr Greg Chen [2017] NSWSC 887
Category:	Costs
Parties:	Praneal Dutt Sharma - First Plaintiff Praneal Sharma & Associates Pty Ltd - Second Plaintiff Phillip Segal - First Defendant Greg Chen - Second Defendant Melita Segal - Third Defendant Yanyi Pty Limited - Fourth Defendant South West Radiology Pty Ltd - Fifth Defendant SWR Pty Ltd - Sixth Defendant Park Central Radiology Pty Ltd - Seventh Defendant
Representation:	Counsel: S.A. Lawrance with D.E. Birch - Plaintiffs M. Izzo - First and Third Defendants A. Hourigan - Second and Fourth Defendants   Solicitors: Carneys Lawyers - Plaintiffs Clayton Utz - First and Third Defendants Booth Boorman Kiely - Second and Fourth Defendants
File Number(s):	2016/322612

Judgment

introduction

1. HIS HONOUR:   On 30 June 2017 I determined, contrary to Dr Sharma’s contention and in accordance with the contentions of Drs Segal and Chen, that there had been an agreed determination of the Deed of Agreement Commercial Arrangements dated 18 April 2013: Dr Praneal Dutt Sharma v Dr Phillip Segal and Dr Greg Chen [2017] NSWSC 887. Only the question of costs remains. Defined terms in that judgment apply here. I have received written submissions from the parties.

2. Dr Segal seeks his costs of the proceedings against Dr Sharma. He does not seek any costs against Dr Chen and Dr Chen (unsurprisingly) does not seek any costs against Dr Segal. Dr Chen also does not seek any costs against Dr Sharma to the intent that each will pay his own.

3. Dr Sharma resists an order for the costs of the whole proceedings putting that the order should be that he pays Dr Segal’s costs only of and associated with the issue of whether there had been an agreed determination or a discretionary determination, including the costs of the hearing. This is on the basis that the various oppression cases were only necessitated because the Chen parties had alleged that the Agreement had been terminated, and when Dr Chen abandoned that contention, the only issue that necessitated adjudication was the type of determination that had occurred.

4. The rule is that costs follow the event unless it appears to the Court that some other order should be made (Uniform Civil Procedure Rules 2005 (NSW) Pt 42 r 42.1). Generally costs should not be ordered on the basis of differentiating between issues on which a party succeeded or failed. Dr Segal has been successful and there is no reason to depart from the usual rules. This is not an appropriate case in my opinion to divide costs on the basis of parsing the issues or to speculate what might have happened if various parties had acted differently.

5. There may perhaps have been some scope, given Dr Chen’s conduct of the case for a Bullock order (Bullock v London & General Omnibus Co [1907] 1 KB 264) in favour of Dr Sharma against Dr Chen for costs attributable to issues spawned by Dr Chen, and for which Dr Sharma will be liable to Dr Segal as the ultimate victor. But Dr Chen and Dr Sharma, as they were free to do, have reached an agreement that there shall be no costs orders between them.

6. The plaintiffs are to pay the costs of the proceedings of the first and third defendants.

************