Everett v Neale

[2012] NSWDC 83

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 to seek such orders.

1. Further, I have no evidence before me to allow me to conclude that DibbsBarker, less still counsel, should not be entitled to retain costs paid to them in the matter. The limited circumstances that allow costs orders against a non-party (see Ritchie's Uniform Civil Procedure NSW p2686 at s98.25) are not supported by any evidence before me although the order sought goes beyond seeking costs orders against a non-party. No authority was identified to support an order of the type identified in the final quotation in paragraph 4 above, and I am not aware of any.

1. Nor do I have any evidence indicating that $50,000 represents a fair approximation of the costs of the defendant. The power to award a gross sum should only be exercised when the Court considers it can do so fairly between the parties, and an absence of evidence to allow the Court to assess a fair and just sum for costs will provide an effective barrier to such an order: Wentworth v Wentworth [1996] NSWCA 553 (see Ritchie's Uniform Civil Procedure NSW p2690 at [98.65]). For this reason also, no order for a gross sum for costs should be made in these proceedings.

1. Costs orders, even indemnity costs orders, are for the purpose of compensating the successful party for the costs of the proceedings, not for the purpose of punishing the unsuccessful party: see Oshlack v Richmond River Council [1998] HCA 11 at [24]-[25]. To make such orders in favour of the defendant without any evidence of the amount of costs incurred by him would necessarily be punitive.

1. The defendant also suggested in his submissions that the law in Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 402 is "simply wrong". Such a submission cannot be accepted in this Court, given the fundamental principle of precedent that a court lower in the judicial hierarchy is obliged to follow a relevant decision of a higher court.

1. The defendant also submitted:

"In the alternative I request that I be allowed to submit a detailed claim for costs to be submitted for assessment if not agreed to by Mr Everett."

This entitlement exists by virtue of the Court's previous order. The only limitation on the costs order in favour of the defendant is that, "those costs are not to include any compensation for time spent by the defendant in preparing and conducting his case". As is apparent from the previous judgment, that is a limitation which is based on high authority. I do not propose to remove it.

1. Finally, in the additional submission made outside of the time granted for submissions on costs, the defendant made a submission concerning his need to provide a contingent liability on his "balance sheet" of $750,000, on the basis that he might lose the case and have to pay $250,000 costs. He appeared to be accepting the plaintiff's figures for this calculation.

1. Whatever may have been the possible outcomes of the proceedings before me, they are necessarily of less significance now. In any event, I am not persuaded that any obligation to record a contingent liability on a balance sheet is compensable by a special order for costs.

1. For these reasons, I decline to alter order 3 made in this matter on 11 May 2012.

Decision last updated: 01 June 2012