France v Siekaup (No 2) - [2020] NSWSC 4

Supreme Court

New South Wales

Medium Neutral Citation: France v Siekaup (No 2) [2020] NSWSC 4
Hearing dates: On the papers
Date of orders: 08 January 2020
Decision date: 08 January 2020
Jurisdiction: Equity
Before: Robb J
Decision:
(1) Order the defendants to pay one half of the plaintiff's costs of the defendants' notice of motion filed on 12 September 2019 and amended on 4 November 2018 on the ordinary basis.
(2) Stand the proceedings over to the Registrar on 10 February 2020 for directions.
Catchwords: COSTS – departure from the usual rule – defendants unsuccessful in seeking orders to retrain plaintiff’s solicitor on the record from further acting in the proceedings and for the production of documents in Amended Notice of Motion – where basis for relief in respect of restraining the plaintiff’s solicitor was tenuous – where defendants justified for a period of time in pursuing relief in respect of the orders for production of documents – appropriate that the defendants pay one half of the plaintiff’s costs of the Amended Notice of Motion
Legislation Cited: Freedom of Information Act 1982 (Cth)
Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Category: Costs
Parties: Karin Elisabeth Siekaup (First Defendant/First Applicant)
Sieve-Storm Pty Ltd atf Affordable Property Trust (Second Defendant/Second Applicant)
Margaret Ann France (Plaintiff/Respondent)
Representation:
Counsel:
M Klooster (Plaintiff/Respondent)
S Galitsky (Defendants/Applicants)
Solicitors:
Cordato Partners Lawyers (Plaintiff/Respondent)
Ian B Mitchell & Associates (Defendants/Applicants)

File Number(s): 2018/323180
Publication restriction: Nil

Judgment

On 9 December 2019 I gave an ex tempore judgment in these proceedings in which I dismissed the amended notice of motion that was filed on 4 November 2019.
There may be some doubt as to which defendant filed the amended notice of motion. Both the notice of motion filed on 12 September 2019 and the amended notice of motion identify as the person seeking the orders the first defendant. However, the same solicitor acts for both defendants. The affidavit sworn by the defendants' solicitor on 12 September 2019 in support of the notice of motion states that it was filed for both defendants. The solicitor swore in par 1 of the affidavit that he was the solicitor for the defendants in the proceedings, although in pars 5 and 6 the solicitor in effect made submissions as to what the first defendant said in support of the claims for relief in the notice of motion.
In accordance with the invitation made by the Court, brief written submissions on the issue of costs were delivered by the plaintiff on 16 December 2019, and the defendants' written submissions were delivered on 12 December 2019.
Paragraph 1 of the defendants' written submissions acknowledged that the defendants were unsuccessful on their motion. That seems to be an acceptance that it was intended by the defendants that they were both applicants on the notice of motion. The plaintiff's written submissions proceeded upon the basis of an acceptance of that position.
The transcript of the hearing on 9 December 2019 does not provide much enlightenment. It appears that I assumed that there was a single defendant because I referred to the defendant in the singular. I may have made that assumption on the basis of the statement in the notice of motion and the amended notice of motion as to who was the party seeking the orders. I have not studied the 24 pages of the transcript in detail, but it appears that the court reporter has proceeded on the basis that there was a single defendant. That is not conclusive of the issue, as the court reporter may have been guided by the assumption effectively expressed by the Court.
In the circumstances, I propose to be guided by the apparent acknowledgement in the written submissions that both defendants sought the relief in the amended notice of motion.
The primary costs order sought by the plaintiff was that the defendants should be ordered to pay the plaintiff's costs of the motion on the ordinary basis. That would be the conventional costs order for the Court to make under Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) r 42.1 under which the Court is to order that the costs follow the event unless it appears to the Court that some other order should be made as to the whole or any part of the costs.
Alternatively, the plaintiff sought an order that the defendants should pay the plaintiff's costs from either 21 October 2019 or 3 December 2019, with each party to bear their own costs prior to the chosen date.
The defendants sought an order that, notwithstanding the dismissal of the amended notice of motion, the plaintiff should be ordered to pay their costs, or alternatively the parties should be ordered to bear their own respective costs.
The relief in the amended notice of motion concerned two separate subjects. First, the defendants sought an order that the plaintiff's solicitor on the record be restrained from further acting in these proceedings for the plaintiff.
It became immediately clear at the hearing, and is accordingly reflected in my judgment, that the defendants had no serious basis for seeking an order restraining the plaintiff's solicitor from continuing to act for her in these proceedings.
It is therefore clear that the defendants should be ordered to pay the plaintiff's costs in respect of the first part of the relief sought by the defendants. The basis of the defendants' claim for that aspect of the relief sought was so tenuous that the defendants should consider themselves lucky that the plaintiff has only sought her costs on the ordinary basis.
In the balance of the defendants' amended notice of motion, the defendants sought orders that the plaintiff produce to the Court the documents sought in a notice to produce dated 2 August 2019, and in respect of documents not produced, that the plaintiff serve an affidavit disclosing the whereabouts of the documents that were within the notice to produce that are not presently in the plaintiff's care, custody or control.
The defendants also sought orders that the plaintiff make application under the Freedom of Information Act 1982 (Cth) to the Australian Taxation Office and Centrelink for various categories of documents, and that the plaintiff produce to the Court all documents released to the plaintiff as a result of those applications.
Finally, the defendants sought an order that, in the event of the plaintiff's failure to comply with the orders relating to the production of documents, the proceedings be permanently stayed.
The defendants' notice to produce required production of the documents by 12 August 2019. It is sufficient to note that the categories of documents required to be produced included such matters as copies of all tax returns of the plaintiff, applications made by the plaintiff for benefits, correspondence with the Commonwealth of Australia relating to the payment of benefits, all bank books, passbooks and bank statements of the plaintiff, as well as a number of other categories of documents, for the period 2006 to the date of the notice to produce.
The plaintiff did not produce any of the documents required to be produced by the notice to produce on 12 August 2019.
On 29 August 2019, the plaintiff's solicitor informed the solicitor for the defendants of the plaintiff's view that the notice to produce was oppressive because none of the documents sought are relevant to the facts in issue, and the categories of documents covered a period spanning 13 years. Additionally, the plaintiff's solicitor stated that the plaintiff had instructed that the plaintiff had nothing to produce in answer to pars 1 to 6 and 8, and nothing further to produce with regard to par 7 of the notice to produce.
With regard to par 7 of the notice to produce, the plaintiff's solicitor stated that documents that were available were to be found in identified pages of an exhibit called MAF-1.
It appears that the exhibit referred to is an exhibit to the plaintiff's affidavit sworn on 4 March 2019.
The defendants then filed their notice of motion on 12 September 2019.
The plaintiff responded with an affidavit dated 24 October 2019 by her solicitor on the record dealing with the defendants' claim for an injunction restraining him from continuing to act for the plaintiff.
Also, on 21 October 2019 the plaintiff filed an affidavit by a solicitor in the employee of her solicitor on the record. That affidavit, particularly in par 17, contains a substantive response to the notice to produce, and for the first time the plaintiff attempted to provide a relatively full explanation concerning her capacity to produce the documents sought by the defendants in their notice to produce.
The matter came before the Chief Judge in Equity on 3 December 2019, and on that occasion her Honour set down the defendants' notice of motion for hearing before me on 9 December 2019.
On 5 December 2019, the employed solicitor acting for the plaintiff made another affidavit in which she explained that on 29 November 2019 she had received a number of further documents from the plaintiff in answer to the notice to produce dated 2 August 2019, and that these documents were produced to the Court on 3 December 2019.
The defendants' written submissions referred in par 8 to the production of the documents on 3 December 2019 and claimed that the defendants did not have an opportunity to fully consider the documents produced when they agreed on 3 December 2019 for their notice of motion to be set down for hearing.
In these circumstances, I have formed the view that the defendants ought not to have sought an order restraining the plaintiff's solicitor on the record from continuing to act for her, but that they were justified to some extent in filing and pursuing their motion seeking the production of documents listed in their notice to produce, at least up until 3 December 2019.
Given the clear significance of the attempt by the defendants to restrain the plaintiff's solicitor on the record from acting for her, I consider that it is reasonable to attribute half of the costs of the defendants' motion to that issue. It is appropriate for the Court to order in respect of that issue that the defendants pay half of the plaintiff's costs of the motion.
The position is less clear concerning the attempt by the defendants to enforce their notice to produce. The practical position is that the plaintiff initially declined to make any production and then by means of the affidavit made on 21 October 2019 the plaintiff first provided a satisfactory explanation as to the extent of her ability to answer the notice to produce, and then on 3 December 2019 provided additional documents. Thus, in part the plaintiff ultimately complied with the notice to produce. However, the defendants elected to prosecute their motion after 3 December 2017, and failed in persuading the Court that they were entitled to any further relief, particularly in respect of any order that the plaintiff make applications under the Freedom of Information Act.
The consequence is that the defendants were justified in pursuing their motion up to 3 December 2019 for the purpose of enforcing their notice to produce but not thereafter. In this respect, I am satisfied that some other order should be made within the meaning of UCPR r 42.1.
It is appropriate that the Court adopt a broad brush approach to this half of the costs of the motion. The result is that the responsibility for the costs being incurred in relation to this aspect of the defendants' claim for relief should be divided equally between the plaintiff on the one hand and the defendants on the other. The effect will be that the cost obligations will cancel out, and the parties should be responsible for their own costs of this aspect of the relief sought by the defendants.
Consequently, the orders that the Court will make are:

Order the defendants to pay one half of the plaintiff's costs of the defendants' notice of motion filed on 12 September 2019 and amended on 4 November 2018 on the ordinary basis.

Stand the proceedings over to the Registrar on 10 February 2020 for directions.

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Decision last updated: 17 January 2020

Medium Neutral Citation:	France v Siekaup (No 2) [2020] NSWSC 4
Hearing dates:	On the papers
Date of orders:	08 January 2020
Decision date:	08 January 2020
Jurisdiction:	Equity
Before:	Robb J
Decision:	(1) Order the defendants to pay one half of the plaintiff's costs of the defendants' notice of motion filed on 12 September 2019 and amended on 4 November 2018 on the ordinary basis. (2) Stand the proceedings over to the Registrar on 10 February 2020 for directions.
Catchwords:	COSTS – departure from the usual rule – defendants unsuccessful in seeking orders to retrain plaintiff’s solicitor on the record from further acting in the proceedings and for the production of documents in Amended Notice of Motion – where basis for relief in respect of restraining the plaintiff’s solicitor was tenuous – where defendants justified for a period of time in pursuing relief in respect of the orders for production of documents – appropriate that the defendants pay one half of the plaintiff’s costs of the Amended Notice of Motion
Legislation Cited:	Freedom of Information Act 1982 (Cth) Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Category:	Costs
Parties:	Karin Elisabeth Siekaup (First Defendant/First Applicant) Sieve-Storm Pty Ltd atf Affordable Property Trust (Second Defendant/Second Applicant) Margaret Ann France (Plaintiff/Respondent)
Representation:	Counsel: M Klooster (Plaintiff/Respondent) S Galitsky (Defendants/Applicants) Solicitors: Cordato Partners Lawyers (Plaintiff/Respondent) Ian B Mitchell & Associates (Defendants/Applicants)
File Number(s):	2018/323180
Publication restriction:	Nil