Eastbury v Genea Limited - [2015] NSWSC 198

Supreme Court

New South Wales

Medium Neutral Citation: Eastbury v Genea Limited [2015] NSWSC 198
Hearing dates: On the papers
Date of orders: 12 March 2015
Decision date: 12 March 2015
Jurisdiction: Common Law
Before: Hall J
Decision:
Order that costs be costs in the cause.

Catchwords: COSTS – Extension of limitation period application – s 60G Limitations Act 1969 - Whether departure from UCPR Rule 42.1 (General rule that costs follow the event) warranted where applicant successful in obtaining an order extending a limitation period – Whether the applicant on an extension of limitation period application is required to pay costs regardless of outcome – Whether applicant’s fault is relevant - Necessary to consider whether the opposition of the respondents to the application was unreasonable - Costs in the cause ordered – PROCEDURE – civil – application to extend limitation period –s 60G Limitation Act 1969 – appropriate costs order
Legislation Cited: Limitation Act 1969
Cases Cited: Commonwealth of Australia v Lewis [2007] NSWCA 127
Commonwealth of Australia v Lewis [2007] NSWCA 127
Commonwealth v Smith [2005] NSWCA 478
Dibley v Sydney West Area Health Service [2009] NSWSC 856
Galea v Commonwealth of Australia (No 2) [2008] NSWSC 260
Holt v Wynter [2000] 49 NSWLR 128
Salvation Army (South Australia Property Trust) v Graham Rundle [2008] NSWCA 347
Williams v Commonwealth of Australia [2007] NSWSC 1342
Category: Costs
Parties: Leighee Eastbury (First Plaintiff)
Philip Eastbury (Second Plaintiff)
Genea Limited (formerly known as Sydney IVF Limited) (Defendant)
Representation:
Counsel:
J Anderson (Plaintiffs)
DA Lloyd (Defendant)
Solicitors:
Catherine Henry Partners (Plaintiffs)
Kennedys Lawyers (Defendant)

File Number(s): 2014/74655

Judgment

The first and second plaintiffs commenced proceedings against Genea Genetics by way of Statement of Claim filed on 11 March 2014 in respect of genetic screening performed by the defendant in 1999.
By way of Amended Notice of Motion filed on 29 September 2014, the plaintiffs sought an order that the limitation period for the causes of action pleaded in the proceedings be extended until 11 March 2014 pursuant to s 60G of the Limitation Act 1969 (NSW).
On 17 December 2014 I handed down my decision on the Notice of Motion: Eastbury v Genea Genetics [2014] NSWSC 1793. I made orders that the limitation period for the causes of action pleaded in the Statement of Claim be extended to 11 March 2014.
In relation to costs I noted that in the ordinary course costs would be awarded in favour of the plaintiffs pursuant to UCPR rule 42.1 but allowed a period of seven days for the defendant to make an application arguing against the making of that order if they chose to do so.
Both the plaintiffs and the defendant have now made submissions as to the appropriate costs order to be made in relation to the application for extension of the limitation period.

Background

The plaintiffs’ claim arises from genetic testing performed by the defendant in 1999.
The first plaintiff, Mrs Eastbury, consulted a general practitioner on or about 27…

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.

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Details

Case: [2015] NSWSC 198
Decision Date: 12 March 2015

CaseChat Overview and Summary

In the matter of Eastbury v Genea Limited, the dispute involved an application for an extension of the limitation period under section 60G of the Limitations Act 1969. The applicant sought to extend the time limit for bringing an action against the respondents, Genea Limited, for various claims. The matter was heard in the Supreme Court of Queensland.

The central legal issues in this case revolved around the appropriateness of awarding costs in an application to extend a limitation period. Specifically, the court had to determine whether the applicant, who was successful in obtaining the order, should be required to pay costs to the respondents. Additionally, the court considered whether the applicant’s fault, if any, was relevant in assessing the costs order and whether the opposition of the respondents was unreasonable.

The court found that the applicant was not required to pay costs to the respondents despite being successful in obtaining the order to extend the limitation period. The court reasoned that the application to extend the limitation period was made in good faith, and the opposition by the respondents was not unreasonable. The court further held that the general rule that costs follow the event does not necessarily apply in these circumstances, and it was appropriate to make a costs in the cause order. Consequently, the applicant was not liable to pay the respondents' costs.

The court’s final order was that the applicant was not required to pay the respondents' costs, and a costs in the cause order was made.

Orders