Forgione v Ashurst Australia (No 2)

[2016] NSWSC 1353

Supreme Court

New South Wales

Medium Neutral Citation:	Forgione v Ashurst Australia (No 2) [2016] NSWSC 1353
Hearing dates:	On written submissions
Decision date:	23 September 2016
Jurisdiction:	Common Law
Before:	Button J
Decision:	(1) The order of 16 September 2016 that each party pay its own costs of the proceedings before me is reinstated.
Catchwords:	CIVIL – COSTS – successful application pursuant to s 350(1) of the Legal Profession Act 2004 (NSW)(repealed) – whether unsuccessful resisting party should have its costs – each party ordered to pay own costs
Cases Cited:	Forgione v Ashurst Australia [2016] NSWSC 1314
Category:	Costs
Parties:	Francesco Forgione (First Plaintiff) Pasquale Forgione (Second Plaintiff) Ashurst Australia – A Partnership ABN 75304286095 (Defendant)
Representation:	Counsel: B Camilleri (Defendant)   Solicitors: TDC Lawyers (Plaintiffs) Davies Moloney (Defendant)
File Number(s):	2016/206222

Judgment

Background

1. When I delivered my first judgment in this matter on 16 September 2016, the solicitor for the plaintiffs indicated that he would like to make a submission about costs, contrary to the second order that I had just made: see Forgione v Ashurst Australia [2016] NSWSC 1314 at [33]. Noting that no submission had been made at the substantive hearing in support of any order other than that sought by the plaintiffs in their summons, I reluctantly vacated order 2, which was that each party must pay its own costs of the proceedings before me. I also requested that written submissions from each party on the question of costs be received in my Chambers before 4 PM on 20 September 2016. Both the solicitor for the plaintiffs and counsel for the defendant, Ashurst Australia – A Partnership (Ashurst), expressed their contentment for me to determine that question in Chambers.

Positions of the parties

2. Thereafter, the ancillary dispute developed unexpectedly. The solicitor for the plaintiffs contacted my Associate and indicated that, contrary to what had been foreshadowed on the morning of 16 September 2016, the plaintiffs were content with my original order that each party should pay his or its own costs.

3. Contrary to that position, counsel for the defendant thereafter filed written submissions in support of the proposition that, despite the plaintiffs having had success on the motion, and despite the subsequent contentment of the plaintiffs with my original order, in fact, my order as to costs should be that the plaintiffs pay the costs of the defendant.

4. That submission was based on the following grounds.

5. First, many of the submissions of the plaintiff in the substantive dispute had been rejected by me.

6. Secondly, I decided the matter not on the basis of the plaintiffs having established any wrongdoing on the part of Ashurst, but rather on the basis that justice and fairness called for the inevitable analysis of the details of legal costs to be undertaken by a costs assessor, rather than a Magistrate: see my first judgment of Forgione v Ashurst Australia at [31].

7. Thirdly, it was the delay on the part of the plaintiffs in pursuing their rights that led to the need for the application in the first place.

8. For those reasons, although it was explicitly accepted by counsel for the defendant that the usual rule is that costs should follow the event, in this case it was said that the plaintiffs should pay the costs of the defendant in the proceedings before me.

Determination

9. Turning to my determination of this question of costs, it may be accepted that much of what the solicitor for the plaintiffs had to say did not find favour with me; so much is apparent from my first judgment.

10. And it is also the case that, in the sense that the plaintiffs were seeking to be permitted to make an application outside a time limit created by statute, they were seeking an indulgence from the Court.

11. But the simple fact is that an application was made, it was resisted by the defendant, and the applying parties were successful. As counsel for the defendant has conceded in his recent written submissions, the usual order, which one might have prima facie expected in those circumstances, would have been that Ashurst, the unsuccessful party on the application, must pay the costs of the successful plaintiffs.

12. As I said in my first judgment, there is no question of that usual order being made in the circumstances of this case. But as an exercise of discretion, and seeking to balance the countervailing arguments in favour of the position of each party, I remain of the opinion that the appropriate order is that each party pay its own costs of the hearing before me.

13. Accordingly, the order that I vacated on 16 September 2016 shall be reinstated.

Order

14. I make the following order:

1. The order of 16 September 2016 that each party pay its own costs of the proceedings before me is reinstated.

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