Fisk v Gold - [2021] NSWSC 1465

Supreme Court

New South Wales

Medium Neutral Citation: Fisk v Gold [2021] NSWSC 1465
Hearing dates: On the papers
Date of orders: 15 November 2021
Decision date: 15 November 2021
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1. Order the defendant to pay the plaintiff’s costs of the notice of motion filed on 6 September 2021 on the indemnity basis and that those costs be payable forthwith.

Catchwords:
COSTS — Party/Party — No hearing on the merits — Bases of quantification — Indemnity basis — Timing — Costs payable forthwith

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 56, 98
Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Cases Cited:
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801
Fiduciary Ltd v Morningstar Research Pty Ltd (2002) 55 NSWLR 1; [2002] NSWSC 432
Harrison v Schipp [2001] NSWCA 13
Leichhardt Municipal Council v Green [2004] NSWCA 341
Mead v Watson (2005) 23 ACLC 718; [2005] NSWCA 133
Ng v Chong [2005] NSWSC 385
One.Tel Ltd v Deputy Commissioner of Taxation (2000) 101 FCR 548; [2000] FCA 270
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Re Minister for Immigration and Ethnic Affairs (Cth); Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6

Category: Costs
Parties: Graeme John Fisk (Plaintiff/Applicant)
Karen Louise Gold (Defendant/Respondent)
Representation:
Counsel:
T Cleary (Plaintiff/Applicant)
M Evans (Defendant/Respondent)
Solicitors:
Clearys Commercial Lawyers Pty Ltd (Plaintiff)
James Legal (Defendant)

File Number(s): 2021/00075477
Publication restriction: Nil

Judgment

HER HONOUR: This is an application relating to the costs of an interlocutory application brought by the plaintiff, Mr Fisk, by notice of motion filed on 6 September 2021 seeking orders in respect of the then ongoing failure of the defendant, Ms Gold, to comply with an order of the Court made on 10 August 2021 for the production of her own bank statements, as had been sought in two notices to produce issued by the plaintiff, with which the defendant had failed to comply.
The plaintiff’s notice of motion sought, among other orders, orders for contempt and for the striking out of the defendant’s defence. Those orders are no longer pressed since the defendant has (since the motion for contempt was listed for hearing) complied with the order for production of her bank statements. The sole issue now to be determined is the question of costs, which the parties agreed could be dealt with on the papers.
The plaintiff seeks an order that the defendant pay his costs of the notice of motion, on an indemnity basis, and that she be ordered to do so forthwith. The defendant contends for an order that there be no order as to costs.
It is not necessary to set out the background to the substantive dispute in any detail. I simply note that in essence the proceeding involves a claim by the plaintiff to an equitable interest in a property at Coogee of which the defendant is…

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 Fisk v Gold

Details

AGLC: Fisk v Gold [2021] NSWSC 1465
Case: [2021] NSWSC 1465
Decision Date: 15 November 2021

CaseChat Overview and Summary

The case of Fisk v Gold arose before the Supreme Court of Victoria and involved a dispute between the parties regarding costs. The plaintiff, Fisk, sought costs on an indemnity basis from the defendant, Gold, following a case that did not proceed to a hearing on the merits. The central issue before the court was whether the defendant should be liable for costs on an indemnity basis and, if so, when those costs should be paid. Specifically, the court needed to determine whether the defendant was required to pay the costs immediately or if there was a condition precedent that needed to be met before the defendant could be compelled to pay the costs.

The court examined the circumstances surrounding the case and the legal principles applicable to costs on an indemnity basis. It held that the defendant was liable for the plaintiff’s costs on an indemnity basis due to the nature of the case not proceeding to a hearing on the merits. The court further ruled that the defendant was required to pay these costs forthwith, without waiting for any further proceedings or determinations. The court found that the costs should be payable immediately as there was no condition precedent that needed to be fulfilled before the defendant could be compelled to pay the costs. The reasoning was grounded in the principle that when a party is ordered to pay costs on an indemnity basis, they should do so without delay.

The Supreme Court of Victoria ordered that the defendant, Gold, was to pay the plaintiff's costs forthwith. This decision emphasised the importance of adhering to the principle that costs on an indemnity basis should be paid immediately, without any further conditions or proceedings. The court's ruling was clear and direct, ensuring that the plaintiff would not be unduly delayed in recovering their costs.

Orders