Gigi Entertainment Pty Ltd v Schmidt
[2011] NSWSC 1346
•02 November 2011
Supreme Court
New South Wales
Medium Neutral Citation: Gigi Entertainment Pty Ltd v Schmidt [2011] NSWSC 1346 Hearing dates: 16/09/2011, 21/10/2011, 02/11/2011, Decision date: 02 November 2011 Before: Garling J Decision: (1) The plaintiff's notice of motion filed on 6 September 2011 is dismissed.
(2) The Plaintiff to pay the defendant's costs of the notice of motion filed on 6 September 2011, but those costs are limited to the costs of and associated with the appearances before this court on 9 September 2011 and 2 November 2011;
(3) Order 3(b) of the Orders made on 21 September 2011 stands and is not affected by today's order;
(4) Costs of and associated with the preparation of the joint expert report referred to in Order 1 of the orders made on 21 September 2011 are costs in the cause.
(5) Matter to be listed before the registrar at 9am on Thursday, 10 November 2011 for directions, for the purpose of the allocation of the hearing date.
Catchwords: COSTS - Notice of Motion seeking orders for reference - Joint expert report ordered with effect that differences minimised - Remaining issues to be determined at hearing - Plaintiff no longer presses motion - Whether costs of motion follow the event or be reserved - Plaintiff to pay for costs of starting and finishing motion - Costs in the cause for balance associated with joint expert reports Legislation Cited: Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005Category: Interlocutory applications Parties: Gigi Entertainment Pty Limited (P)
Michael Karl Schmidt (D)Representation: Counsel:
C Mobellan (P)
S Robertson (D)
Solicitors:
O’Neill Partners Commercial Lawyers (P)
Brischetto and Ford (D)
File Number(s): SC 2008/289478 Publication restriction: Nil
EX TEMPORE JUDGMENT
HIS HONOUR: These proceedings were referred to me on the 9th of September 2011, when I was sitting as the Common Law duty judge. At that time, what was before the court was a notice of motion, filed by the plaintiff, seeking orders for a reference out of identified questions.
The proceedings have been on foot now for about three years, and during that time significant progress has been made towards narrowing the issues, but a number of issues remain outstanding to be heard and determined.
It seemed to me, when the matter was listed before me, that the costs associated with a reference out could be saved completely, or at least minimised, if the experts retained by the parties were required to confer, with a view to identifying what really remained in issue between them, and therefore the identity, or at least the professional qualifications of, a suitable referee.
Since 9 September 2011, the matter has been the subject of case management with a view to having the experts minimise their differences, so far as possible.
Today, 2 November 2011, I am informed by the parties that the position has been reached that the experts have, to the extent possible, minimised the differences between them, so that there is now no longer any need for a reference. The issues remaining between the parties can now be determined by the Court.
In those circumstances, the plaintiff no longer presses its motion seeking an order for reference out.
The parties are agreed that the plaintiff's notice of motion, filed on 6 September 2011, ought be dismissed.
The parties are not agreed as to the legal costs, although there is some partial agreement.
On 21 September 2011, in order 3(b) made on that day, I ordered that the costs associated with the determination of questions 1(d), 1(e) and question 12 of the questions asked of the experts would be reserved. The parties are agreed that that order should stand.
Since the 9th of September 2011, as I have indicated, most of the time and management of the proceedings has been associated with the obtaining of joint expert opinions, and the narrowing of expert issues.
As I see it, after the initial hearing the proceedings were stood over to the 16th of September 2011, in order that the parties could prepare, and submit to the court, draft orders and directions with respect to the joint expert conference.
On the 27th of September 2011, I made, by consent, a series of orders in chambers and the matter was stood over until 21 October 2011.
By that time there had been a large measure of agreement between the experts, a joint report had been produced or was in the process of being produced, but one of the experts required a further site visit, and accordingly the matter was stood over until today to enable that to occur.
The plaintiff submits that I should make a finding that these particular events were all associated with the joint expert report process, and accordingly ought stand outside any order for costs which might otherwise be made. The plaintiff submits that, in those circumstances, the preferable order of the Court is that the costs of its notice of motion be reserved.
The defendant, on the other hand, submits, putting it simply, costs ought to follow the event and that, providing the exceptions to the costs orders are noted, it is a matter for the assessment process to what costs should or should not fall in his favour.
In making this decision, I am applying the discretion of the court which is governed in part by the Uniform Civil Procedure Rules 2005 which deal with costs, namely rule 42.1 which reads that:
"Subject to this Part, if the court makes any order as to costs, 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."
In exercising that power, I am obliged, in accordance with section 56 of the Civil Procedure Act, to do so, giving effect to the overriding purpose set out in section 56(1) of that Act 2005, which is that I am to facilitate the just, quick and cheap resolution of the real issues in dispute in the proceedings.
The parties have already incurred significant costs. I am not persuaded that a fulfilment of the overriding purpose, set out in section 56 of the Civil Procedure Act, mandates an order reserving the costs for a future time, nor am I persuaded that the parties ought be forced to go through yet another expensive costs assessment process.
Having regard to my knowledge of the matter, I am of the view that it is better for me to indicate what costs are to be paid and in respect of which days and events.
I am satisfied that it would be fair and just in the circumstances for the plaintiff to pay the defendant's costs of the appearance on 9 September 2011, which was the first day upon which the motion was listed for hearing in the duty list and the day upon which it would have been heard, but for my decision to proceed along a case management pathway.
The plaintiff should pay for today's proceedings, which is the day upon which the plaintiff determined not to proceed with the motion.
I am otherwise satisfied that the balance of the costs associated with this motion are directly part of and associated with arrangements for the preparation of the joint expert report or reports and, accordingly, ought be costs in the cause.
It is appropriate that I then make the following formal orders:
(1) I dismiss the plaintiff's notice of motion filed on 6 September 2011;
(2) I order that the plaintiff pay the defendant's costs of the notice of motion filed on 6 September 2011, but those costs are limited to the costs of and associated with the appearances before this court on 9 September 2011 and 2 November 2011;
(3) I order that Order 3(b) of the orders made on 21 September 2011 stands and is not affected by today's order;
(4) I order that the costs of and associated with the preparation of the joint expert report referred to in Order 1 of the orders made on 21 September 2011 are costs in the cause.
(5) I order that the matter be listed before the registrar at 9am on Thursday, 10 November 2011 for directions, for the purpose of the allocation of the hearing date.
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Decision last updated: 08 November 2011
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