GB v EB (No 2)

Case [2023] NSWDC 185


District Court


New South Wales

Medium Neutral Citation: GB v EB (No 2) [2023] NSWDC 185
Hearing dates: 26 May 2023
Date of orders: 08 June 2023
Decision date: 08 June 2023
Jurisdiction:Civil
Before: Gibson DCJ
Decision:

(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)

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 98

Supreme Court Act 1970 (NSW), s 69

Uniform Civil Procedure Rules 2005 (NSW), rr 20.14, 50.16A

Cases Cited:

AB v State of New South Wales [2014] NSWCA 243

Amirbeaggi v EB [2023] NSWCA 108

Arian v Nguyen [2001] NSWCA 5

Colgate-Palmolive Co v Cussons Pty Ltd [1993] FCA 801

Commonwealth of Australia v Gretton [2008] NSWCA 117

El-Hadi v Australian Timbers (NSW) Pty Limited [2020] NSWSC 1501

Ferella v Stomo [2017] NSWCA 268

Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397

Gabriel v Grech [2018] NSWSC 1652

GB v EB [2022] NSWDC 322

Grass v Minister for Immigration and Border Protection (No 2) [2015] FCAFC 61

Lollis v Loulatzis(No 2) [2008] VSC 35

Macdonald v Macdonald [2017] NSWSC 809

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v PDWL (costs) [2021] FCAFC 75

Oshlack v Richmond River Council (1998) 193 CLR 72

Osman v Director of Public Prosecutions (No 2) [2016] NSWSC 1222

Zadeh v The Hollard Insurance Company Pty Ltd [2022] NSWSC 345

Texts Cited:

Nil

Category:Costs
Parties:

GB (Plaintiff)

Defendants:
EB (First Defendant)
SB (Second Defendant)
RB (Third Defendant)
Representation:

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

  1. 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:

  1. Refuse leave to appeal pursuant to s 89 of the Legal Profession Uniform Law Application Act 2014 (NSW) and dismiss the appeal.

  2. Costs reserved with liberty to apply.

  1. 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).

  2. In the interim, the successful defendants/respondents made an…

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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.

(2) Exhibits retained until further order.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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