Golden v V'landys (No 2)

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Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Golden v V’landys (No 2) [2016] NSWCA 350
Hearing dates:On the papers
Decision date: 13 December 2016
Before: McColl JA; Leeming JA; Payne JA.
Decision:

(1) The respondents pay 40 per cent of the appellant’s costs of the trial as agreed or assessed.

 (2) The motion dated 21 November 2016 filed by Mr V’landys be dismissed as incompetent.
Catchwords:

COSTS – appeal allowed in part – costs of trial – appropriate costs order where a number of issues at trial not ventilated on appeal

  COSTS – application to vary costs order made in the appeal – application made out of time – motion incompetent
Legislation Cited: Civil Procedure Act 2005 (NSW) ss 98, 101
Uniform Civil Procedure Rules 2005 (NSW) r 36.11, 36.16
Cases Cited: Bartlett v Australia & New Zealand Banking Group Ltd (No 2) [2016] NSWCA 142
Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15
Tomanovic v Global Mortgage Equity Corporation (No 2) [2011] NSWCA 256; (2011) 288 ALR 385
Category:Costs
Parties: Joseph Golden (applicant)
Peter V’landys (first respondent)
Racing New South Wales (second respondent)
Representation:

Counsel:
A Crossland (applicant)
G Connellan (first respondent)
H El-Hage (second respondent)

  Solicitors:
Moray & Agnew Lawyers (first respondent)
DLA Piper Australia (second respondent)
File Number(s):2015/362606
 Decision under appeal 
Court or tribunal:
Supreme Court of New South Wales
Jurisdiction:
Common Law Division
Citation:
[2015] NSWSC 1709
Date of Decision:
17 November 2015
Before:
Adamson J
File Number(s):
2013/140063

Judgment

  1. THE COURT: On 4 November 2016, this Court allowed an appeal by Mr Golden, and made an order that the respondents pay 75 per cent of Mr Golden’s costs of the appeal as agreed or assessed.

  2. Given the number of issues ventilated at trial, many of which were not the subject of appeal, orders were made for the parties to file and serve submissions about the appropriate orders to be made concerning the costs of the hearing before the primary judge.

Brief factual outline

  1. The applicant, Mr Joseph Golden, was a professional horse trainer. At all relevant times the first respondent Mr Peter V’landys was the Chief Executive Officer of the second respondent, Racing New South Wales (RNSW).

  2. On 8 June 2011, Mr V’landys communicated his decision to Mr Golden to suspend Mr Golden’s horse trainer’s licence for six months (the first decision).

  3. On 24 June 2011, Mr V’landys communicated his decision to Mr Golden that Mr Golden be “warned off” all racetracks under the control of RNSW for an unlimited period of time (the second decision).

  4. The first and second decisions were challenged in proceedings commenced by Mr Golden in the Supreme Court. The appellant relied upon the following grounds:

  1. bias;

  2. apprehended bias;

  3. irrelevant considerations;

  4. improper purpose;

  5. bad faith;

  6. unreasonableness / irrationality; and

  7. misfeasance in public office.

  1. The primary judge dismissed the proceedings. The appellant only challenged her Honour’s conclusions about the second decision in this Court. The…

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Details
Case
[2016] NSWCA 350
Decision Date

CaseChat Overview and Summary

In *Golden v V'landys (No 2)*, the New South Wales Court of Appeal considered an application to vary a costs order made in a prior appeal and the appropriate costs order for the trial where a number of issues were not ventilated on appeal. The appellant, Mr Golden, had sought to vary the costs order from the appeal, and the respondents, Mr V'landys and others, sought to recover their trial costs.

The Court was required to determine two principal issues. Firstly, whether the application to vary the costs order from the appeal was competent, particularly given it was made out of time. Secondly, the Court had to determine the appropriate costs order for the trial, considering that not all issues raised at trial were pursued on appeal.

The Court held that the motion to vary the costs order from the appeal was incompetent as it was made out of time and therefore dismissed. Regarding the trial costs, the Court reasoned that while the appeal was allowed in part, a significant number of issues from the trial had not been pursued on appeal. Consequently, the Court ordered that the respondents pay 40 per cent of the appellant’s costs of the trial, as agreed or assessed.

Orders

Orders of the court

(1) The respondents pay 40 per cent of the appellant’s costs of the trial as agreed or assessed.

(2) The motion dated 21 November 2016 filed by Mr V’landys be dismissed as incompetent.

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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