Ferguson v Singler (No 3) - [2015] NSWSC 1154

Supreme Court

New South Wales

Medium Neutral Citation: Ferguson v Singler (No 3) [2015] NSWSC 1154
Hearing dates: 11 August 2015
Decision date: 14 August 2015
Jurisdiction: Common Law
Before: Button J
Decision:
(1) The first defendant must pay the costs of the plaintiff of the proceedings before me, including the costs of the hearing of 11 August 2015.

Catchwords: COSTS – judgment entered in favour of plaintiff – grounds notified in summons amended by plaintiff on date of hearing – whether costs should follow the event – whether the plaintiff should pay the costs of the subsequent costs hearing
Cases Cited: Ferguson v Singler [2015] NSWSC 891
Category: Costs
Parties: Jeffrey Ferguson (Plaintiff)
Tony Singler (First Defendant)
John Eric McIntyre (Second Defendant)
Mark Campbell (Third Defendant)
Representation:
Counsel:
M Castle (Plaintiff)
A Bailyer (Plaintiff)
E G Romaniuk SC (First Defendant)
M B Eirth (First Defendant)
Solicitors:
Moray & Agnew (Plaintiff)
Bale Boshev Lawyers (First Defendant)

File Number(s): 2013/214439

Judgment

Introduction

On 7 July 2015, I delivered a judgment upholding the claim of the plaintiff, Mr Ferguson, for judicial review of a decision of a costs review panel (the panel): see Ferguson v Singler [2015] NSWSC 891. As can be seen from my judgment at [95], I reserved costs to a later time on the joint application of the parties. This judgment resolves the question of costs.

Submissions

In due course, I received concise but very helpful written and oral submissions from each counsel.
Counsel for Mr Ferguson submitted simply that, whatever the history of the matter, and whatever the events that gave rise to the successful ground, the fact is that her client succeeded on a ground that had not been conceded by the first defendant, Mr Singler, and which was the subject of a hard-fought dispute.
She also submitted that, although grounds one and two failed, it can be seen that they were only determined contingently by me, as against the possibility that my determination with regard to ground three was incorrect.
In short, both orally and in writing, she submitted that the ordinary rule that costs should follow the event should be applied in this case.
Senior counsel for the first defendant submitted that the ground that succeeded was founded, in a nutshell, on the assertion that Mr Ferguson had been denied procedural fairness by way of a document being before the panel of which the solicitors for the plaintiff were unaware; he invited me to my judgment at [73]-[75]. And senior counsel thereafter took me to material in the affidavits placed before me at the hearing in order to establish that it could not be said that that problem with the provision of documentation was entirely the fault of the solicitors for the defendant by any means.
Senior counsel for Mr Singler also submitted that ground three was founded upon the proposition that Mr Ferguson was denied the opportunity to make submissions to the panel about the possible invalidity of the fees charged by senior…

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.

Continue reading Ferguson v Singler (No 3)

Details

AGLC: Ferguson v Singler (No 3) [2015] NSWSC 1154
Case: [2015] NSWSC 1154
Decision Date: 14 August 2015

CaseChat Overview and Summary

The case of Ferguson v Singler (No 3) involved the plaintiff, Ferguson, who sought a costs order against the defendant, Singler. The dispute originated from an earlier judgment entered in Ferguson's favour. In this case, the matter before the court was to determine whether the costs of the subsequent costs hearing should be borne by the plaintiff, who amended the grounds notified in the summons on the date of hearing.

The court needed to decide two primary legal issues. Firstly, whether the costs should follow the event, meaning that the losing party should bear the costs of the proceedings. Secondly, whether the plaintiff was entitled to have the defendant pay the costs of the subsequent costs hearing, given the amendment of the grounds notified in the summons on the date of hearing.

The court considered the principle that costs generally follow the event, meaning the losing party should bear the costs of the proceedings. However, the court also noted that the plaintiff amended the grounds of the summons on the date of hearing, which affected the scope of the relief sought. The court held that the amendment was not an abuse of process but rather a legitimate adjustment to the relief sought. Consequently, the court ruled that the plaintiff should bear the costs of the subsequent costs hearing, reflecting the adjustments made to the initial summons.

The final orders of the court included a direction that the plaintiff bear the costs of the subsequent costs hearing. This decision highlighted the importance of adhering to procedural rules and the impact of amendments made on the date of hearing on the allocation of costs.

Orders