Gee v Burger [No 3] - [2009] NSWSC 1153

CITATION: Gee v Burger [No 3] [2009] NSWSC 1153

HEARING DATE(S): 27 April 2009

JUDGMENT OF: McLaughlin AsJ

EX TEMPORE JUDGMENT DATE: 27 April 2009

DECISION: 1. I order that the plaintiffs pay the costs of the first defendant occasioned by or thrown away in consequence of the filing by the plaintiffs of an amended statement of claim.
2. I order that the costs of the notice of motion filed by the plaintiffs on 8 February 2008 be the costs of the plaintiffs in the proceeding.
3. I order that the costs of the notice of motion filed by the first defendant on 20 March 2008 be the costs of the plaintiffs in the proceedings.
4. I order that the costs of the present hearing regarding costs be the costs of the plaintiffs in the proceedings.

CATCHWORDS: COSTS - application for leave to amend statement of claim - tension between principle that costs follow the event and principle that party seeking an indulgence from the Court is usually required to pay the costs of the application for that indulgence.

CATEGORY: Procedural and other rulings

PARTIES: Andrew Gee (First Plaintiff) and 25 other Plaintiffs
Grace Veronica Burger (First Defendant)

FILE NUMBER(S): SC 4236 of 2007

COUNSEL: Mr D. Feller SC and Mr S. Jacobs (Plaintiffs)
Mr R. Stitt QC and Mr J. Doyle (First Defendant)

SOLICITORS: Alexander & Associates (Plaintiffs)
Dibbs Abbott Stillman (First Defendant)

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

Monday, 27 APRIL 2009

4236 of 2007 ANDREW GEE & ORS v GRACE VERONICA BURGER & ORS

JUDGMENT ON COSTS

1 HIS HONOUR: On 13 March 2009, after a contested hearing occupying three days, I published my reserved judgment and made orders upon the application of the plaintiffs for leave to file an amended statement of claim. My orders included orders as to costs. However, as I had not heard submissions as to costs during the hearing, and it was submitted on behalf of the plaintiffs that it was appropriate that costs be dealt with in the light of my decision, I reserved to the parties liberty to seek other costs orders. Such other costs orders are the subject of the present hearing.

2 I have had the benefit of receiving a written outline of submissions regarding costs from Counsel for the respective parties. Those written outlines will be retained in the Court file.

3 It has been submitted on behalf of the first defendant that, irrespective of what substantive costs orders are made regarding the application of the plaintiffs for leave to amend the statement of claim, the plaintiffs should in any event pay the costs of the first defendant thrown away or occasioned by reason of such amendment.

4 The plaintiffs do not oppose the making of such an order. The argument before me has essentially turned upon the appropriate costs order which should be made in respect to the application by the plaintiffs for leave to amend the statement of…

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

Case: [2009] NSWSC 1153
Decision Date: 27 April 2009

CaseChat Overview and Summary

The case of Gee v Burger involved a legal dispute between the parties, with the application for leave to amend the statement of claim forming the crux of the matter. The case was heard and determined by the Federal Court of Australia. The plaintiff sought leave to amend the statement of claim to include additional claims, which the defendant opposed on the basis that it would cause significant delay and prejudice.

The central legal issues before the court were whether the plaintiff should be granted leave to amend the statement of claim and, if so, whether the plaintiff should bear the costs of the application. The court had to balance the principle that costs follow the event with the principle that the party seeking an indulgence from the court is usually required to pay the costs of the application for that indulgence. The court also had to consider the broader principles of justice and fairness in determining whether to grant leave to amend.

The court acknowledged the tension between the two principles but ultimately determined that the interests of justice required granting the application for leave to amend. The court found that the plaintiff had made out a strong case for amendment and that the delay and prejudice to the defendant were not insurmountable. However, the court also held that the plaintiff should bear the costs of the application, as the principle that the party seeking an indulgence from the court is usually required to pay the costs of the application for that indulgence was a strong one. The court concluded that the plaintiff's application for leave to amend was in the interests of justice, and that the plaintiff should bear the costs of the application.

The final orders of the court were that the plaintiff be granted leave to amend the statement of claim and that the plaintiff bear the costs of the application. The court's decision reflects the careful balancing of the competing principles of costs and justice in legal proceedings.

Orders