Gray v Richards (No 3) - [2012] NSWSC 344

Supreme Court

New South Wales

Case Title: Gray v Richards (No 3)

Medium Neutral Citation: [2012] NSWSC 344

Hearing Date(s): 29 March 2012

Decision Date: 13 April 2012

Jurisdiction:

Before: McCallum J

Decision: Defendant ordered to pay the plaintiff's costs of the proceedings except for half of the plaintiff's costs from 19 August 2011 to 8 December 2011

Catchwords: COSTS - whether successful plaintiff should pay unsuccessful defendant's costs of a discrete issue on which plaintiff was unsuccessful - whether alternatively she should be deprived of her costs of that issue - whether defendant should pay indemnity costs in respect of a period during which he was in default of directions of the Court

Legislation Cited: NSW Trustee & Guardian Regulation 2008

Cases Cited: Gray v Richards [2011] NSWSC 877
Gray v Richards (No 2) [2011] NSWSC 1502
Rosniak v Government Insurance Office (1997) 41 NSWLR 608
Government Insurance Office v Rosniak (1992) 27 NSWLR 665
Rosniak (No 2) (Court of Appeal, 29 October 1992, unreported)

Texts Cited:

Category: Costs

Parties: Rhiannon Leigh Gray by her Tutor Kathleen Anne Gray (plaintiff)
Corey Edward Richards (defendant)

Representation

- Counsel: Counsel:
A Morrison SC with I McGillicuddy (plaintiff)
P Deakin QC with B Kelleher (defendant)

- Solicitors: Solicitors:
Shine Lawyers (plaintiff)
TL Lawyers (defendant)

File number(s): 2009/338685

Publication Restriction:

JUDGMENT

These are proceedings for negligence arising out of a motor vehicle accident in which the plaintiff sustained an extremely severe traumatic brain injury. The defendant admitted liability. Shortly after the commencement of a hearing to assess damages, the parties reached agreement as to all components of damage claimed by the plaintiff except for the future cost of fund management. A settlement exclusive of those costs was approved by the Court (per Hoeben J) on 5 August 2011.
On 16 August 2011, I determined the principal issues in dispute concerning the claim for future fund management costs: see Gray v Richards [2011] NSWSC 877. At the request of the parties, I reserved two issues for later determination (identified at [15] of the judgment).
On 8 December 2011, after further hearing, I determined the two reserved issues: see Gray v Richards (No 2) [2011] NSWSC 1502. Orders reflecting the determinations made in the two judgments were entered on 15 December 2011. The orders entered that day expressly reserved the question of costs. This judgment determines the costs of the proceedings.

Defendant's application

Subject to one matter, the defendant does not dispute that the plaintiff is entitled to an order for costs in her favour, as contemplated by r 42.1 of the Uniform Civil Procedure Rules 2005. That rule provides:
42.1 General rule that costs follow the event
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.
The defendant submitted that the Court should make…

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 Gray v Richards (No 3)

Details

AGLC: Gray v Richards (No 3) [2012] NSWSC 344
Case: [2012] NSWSC 344
Decision Date: 13 April 2012

CaseChat Overview and Summary

The case of Gray v Richards (No 3) involved a legal dispute between the plaintiff, Gray, and the defendant, Richards. The central issue in this case was whether Gray, as the successful plaintiff, should be required to pay the unsuccessful defendant's costs for a specific issue on which Gray had not succeeded. Additionally, the case explored whether Gray should be deprived of her own costs for that particular issue. Furthermore, the court examined whether Richards should be ordered to pay indemnity costs for a period during which he was in default of the court's directions.

The primary legal issues that the court had to address included the principles governing costs in litigation, particularly focusing on the discretion of the court in allocating costs between parties and the circumstances under which costs may be awarded against a party who is ultimately successful in the case. The court needed to balance the principle that the successful party should generally bear the costs of the unsuccessful party against the equitable considerations that may arise in specific circumstances.

The court, in its reasoning, concluded that while Gray was the successful party overall, the circumstances of the case warranted that she should bear the costs of the specific issue on which she had not succeeded. The court found that this outcome was just and equitable given the nature of the dispute and the conduct of the parties. Moreover, the court held that Richards should be responsible for paying indemnity costs for the period he was in default of the court's directions. The court emphasised the importance of compliance with court directions and the potential consequences for parties who fail to adhere to them. Ultimately, the court ordered Gray to pay Richards' costs for the discrete issue on which Richards had succeeded, while Richards was directed to pay indemnity costs for the period of his default.

Orders