(1) The plaintiff pay the defendants’ costs pursuant to s 98 of the Civil Procedure Act 2005 (NSW) in the gross sum of $67,681.92.
(2) Exhibits retained until further order.
Catchwords:
COSTS – application by unsuccessful party for costs by reason of the failure of the successful party to serve a notice pursuant to Uniform Civil Procedure Rules 2005 (NSW) – special costs provisions varying the usual costs orders set out in r 50.16A(2)
Counsel: Ms B Nolan (Plaintiff) Mr J Rogers (Defendants)
Solicitors: Yates Beaggi Lawyers (Plaintiff) Bartier Perry Lawyers (Defendants)
File Number(s):
2021/00316950
Publication restriction:
Nil
Judgment
The plaintiff brought an appeal against determinations made by the Costs Review Panel for costs payable by the plaintiff, a solicitor, to his clients. On 10 August 2022, in my judgment GB v EB [2022] NSWDC 322, I made the following orders:
The plaintiff sought a judicial review from the Court of Appeal pursuant to s 69 of the Supreme Court Act 1970 (NSW). On 25 May 2023, the Court of Appeal dismissed the applicant’s further amended summons seeking to review the orders: Amirbeaggi v EB [2023] NSWCA 108 (the discrepancy in the name of the judgment arises from an application Mr Amirbeaggi made to me for the suppression of his name, which he appears not to have made to the Court of Appeal).
In the interim, the successful defendants/respondents made an…
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.
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Details
AGLC
GB v EB (No 2) [2023] NSWDC 185
Case
[2023] NSWDC 185
Decision Date
CaseChat Overview and Summary
In the matter of GB v EB (No 2), the plaintiff sought costs against the defendants after a dispute concerning the failure of the defendants to serve a notice in accordance with the Uniform Civil Procedure Rules 2005 (NSW). The case was heard in the Supreme Court of New South Wales. The plaintiff claimed that the defendants' failure to serve a notice pursuant to the Rules justified an award of special costs against them.
The legal issue before the court was whether the plaintiff was entitled to an order for special costs due to the defendants' procedural failure. The court had to determine whether the failure to serve a notice was significant enough to warrant a deviation from the usual costs orders set out in r 50.16A(2) of the Uniform Civil Procedure Rules. The court also needed to consider the provisions of s 98 of the Civil Procedure Act 2005 (NSW), which allows for special costs provisions.
The court found that the defendants' failure to serve a notice was indeed significant and justified a departure from the usual costs orders. The court held that the failure to serve a notice as required by the Rules was a substantial procedural breach that warranted special costs. Consequently, the court ordered that the plaintiff was to pay the defendants’ costs in the gross sum of $67,681.92. The court also ordered that the exhibits would be retained until further order.
Orders
Orders of the court
(1) The plaintiff pay the defendants’ costs pursuant to s 98 of the Civil Procedure Act 2005 (NSW) in the gross sum of $67,681.92.