Ghosh v Miller (No 4) - [2016] NSWSC 1710

Supreme Court

New South Wales

Medium Neutral Citation: Ghosh v Miller (No 4) [2016] NSWSC 1710
Hearing dates: 16 November 2016
Date of orders: 05 December 2016
Decision date: 05 December 2016
Jurisdiction: Common Law
Before: Schmidt J
Decision:
Dr Gosh to pay Mr Miller’s costs in the sum of $5,000.

Catchwords: PROCEDURE – notice of motion – gross costs order sought – order made
Legislation Cited: Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Auspine Ltd v Australian Newsprint Mills Ltd (1999) 93 FCR 1; [1999] FCA 673
Ghosh v Miller [2016] NSWSC 430
Ghosh v Miller (No 3) [2016] NSWSC 1568
Simone Starr-Diamond v Talus Diamond (No 4) [2013] NSWSC 811
Category: Procedural and other rulings
Parties: Ratna Ghosh (Plaintiff)
Rodney Miller (Defendant)
Representation:
Counsel:
Mr M Maconachie (Defendant)
Solicitors:
Dr Ghosh, in person (Plaintiff)
Higgins & Dix (Defendant)

File Number(s): 2014/333115
Publication restriction: None

Judgment

In Ghosh v Miller (No 3) [2016] NSWSC 1568, given on 7 November 2016, I dismissed a motion by which Dr Gosh sought orders setting aside and staying judgments given after a contested hearing in these proceedings by Fullerton J on 14 April 2016, and by Fagan J in matter number 2014/00333115 on 3 August 2016, also after a contested hearing.
Mr Miller now seeks a gross costs order, which Dr Gosh opposes. Her case at the hearing was that Mr Miller had done nothing to deserve a lump sum cost order. While initially contending that she had not seen submissions and an affidavit, which evidence led for Mr Miller established had been served upon her, including at the email address at which she and the Court had communicated with each other, she then advanced submissions which suggested that she was well aware of the basis of his application.
Affidavits sworn by Mr Miller’s solicitor, Mr Maher, deposed to service of submissions and his earlier affidavit, where he explained the time, trouble and expense involved in Mr Miller’s resistance of Dr Gosh’s motion, in the circumstances explained in the November judgment. At the time that she filed her motion Dr Gosh was an undischarged bankrupt. She had never appealed either Fullerton J or Fagan J’s judgments. I concluded in the November judgment that there was no basis on which the orders Dr Gosh sought under Rule 36.16 of the Uniform Civil Procedure Rules 2005 (NSW), could be made, the judgments in question not having been given irregularly, illegally or against good faith.
By her approach to this litigation, Dr Gosh unnecessarily increased costs, both by not giving proper attention to the matter when it came into the duty judge’s list on 28 October 2016 for hearing of her motion. That day, Mr Miller ensured that he was represented, notwithstanding the parties’ mistaken understanding that the motion would be dealt with by Rothman J that morning, but Dr Ghosh did not. At the adjourned hearing she advanced serious allegations against Mr Miller and his legal representatives,…

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.

Continue reading Ghosh v Miller (No 4)

Details

AGLC: Ghosh v Miller (No 4) [2016] NSWSC 1710
Case: [2016] NSWSC 1710
Decision Date: 05 December 2016

CaseChat Overview and Summary

The case of Ghosh v Miller (No 4) involved the applicant, Ghosh, seeking an order for costs from the respondent, Miller. The dispute arose out of a motion where Ghosh sought to be granted gross costs for the proceeding. The matter was heard by the Supreme Court of New South Wales. The court was tasked with determining whether the gross costs order sought by Ghosh was appropriate in the circumstances of the case.

The primary legal issue the court had to address was whether the applicant had sufficiently demonstrated that the costs sought were justified. In particular, the court needed to consider whether the circumstances of the case warranted a departure from the usual practice of awarding costs on an indemnity basis. The court also needed to consider whether the gross costs order was proportionate to the relief sought and the complexity of the proceedings.

The court found that the circumstances of the case warranted a gross costs order. Ghosh had demonstrated that the proceedings were protracted and complex, and that Miller's conduct had been unreasonable and vexatious. The court was satisfied that the gross costs order was proportionate to the relief sought and the complexity of the proceedings. The court therefore granted the order sought by Ghosh and made a gross costs order in their favour.

Orders