Everett v Neale

District Court

New South Wales

Medium Neutral Citation:	Everett v Neale [2012] NSWDC 83
Decision date:	30 May 2012
Before:	P Taylor SC DCJ
Decision:	1. Decline to amend the previous cost order made in these proceedings on 11 May 2012.
Catchwords:	COSTS
Cases Cited:	Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 402 Oshlack v Richmond River Council [1998] HCA 11 Wentworth v Wentworth [1996] NSWCA 553
Texts Cited:	Ritchie's Uniform Civil Procedure NSW
Category:	Costs
Parties:	Peter Everett (plaintiff) James Neale (defendant)
Representation:	Mr C Colquhoun (plaintiff) Self-represented (defendant) DibbsBarker (plaintiff) Self-represented (defendant)
File Number(s):	2011/176981

Judgment

1. On 11 May 2012 I gave judgment in this matter in favour of the defendant, making the following orders:

(1) Pursuant to section 136 of the Evidence Act 1995, the use of exhibit 2 be limited so that the documents therein may not be used to determine any contested question of fact.

(2)   The proceedings be dismissed pursuant to Uniform Civil Procedure Rules 2005 13.4(1)(b).

(3)   The plaintiff pay the defendant's costs of the proceedings including the notice of motion, those costs not to include any compensation for time spent by the defendant in preparing and conducting his case.

1. Upon the delivery of judgment, the plaintiff requested leave to make further submissions regarding costs and I made a further order granting leave to both parties to file written submissions on the question of costs within seven days.

1. The plaintiff filed no submissions but the defendant, who appeared in person in the earlier hearing, sent by email to my associate two sets of further submissions, one on Friday, 18 May 2012 at 4.34pm and a further submission at 7.23pm on Saturday, 19 May 2012.

1. The defendant's submissions seek that the Court order a specified gross sum instead of assessed costs. In the submissions the defendant sought that the costs order in his favour include an amount equal to "any payment made to Mr Everett's counsel or firm". He also sought that, "the Court award costs of $50,000 [as] a specified gross sum" and that "any benefit received by Counsel and Dibbs Barker from Mr Everett be transferred to me by way of costs".

1. No application has previously been made for a specified gross sum, or for an order compelling the plaintiff's lawyers to disgorge their costs. Were I to allow an amendment to the notice of motion to seek these orders, this would require a further hearing for the parties to allow the plaintiff to be heard on these matters. The plaintiff's solicitors and counsel would also be entitled to be heard and would be entitled to obtain separate representation. In my view, it is too late for the defendant to raise these matters. In accordance with the principles in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27, I would refuse leave to allow any amendment…