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Gray v Richards (No 4)

Gray v Richards (No 4)

Case [2017] NSWSC 1714 8 December 2017

Costs

Limitation Periods

Appeal

Civil Litigation & Procedure

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Gray v Richards (No 4) [2017] NSWSC 1714
Hearing dates: 7 December 2017
Date of orders: 08 December 2017
Decision date: 08 December 2017
Jurisdiction: Common Law
Before: McCallum J
Decision:
Application for interest on costs allowed

Catchwords: COSTS – application for interest on costs – application made after appeals to Court of Appeal and High Court – whether first instance court is functus officio – where costs order at first instance set aside by Court of Appeal and Court of Appeal’s order subsequently set aside by High Court – whether first instance court has authority under s 101(4) to order interest on costs on the strength of High Court’s order – whether application should be refused on grounds of alleged delay
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56(2), 98(3), 101(4)
Judiciary Act 1903 (Cth), s 37
Uniform Civil Procedure Act 2005 (NSW), r 36.16
Cases Cited: Grace v Grace (No 9) [2014] NSWSC 1239
Gray v Richards (No 2) [2014] HCA 47
Gray v Richards (2011) 59 MVR 85; [2011] NSWSC 877
Gray v Richards (No 2) [2011] NSWSC 1502
Gray v Richards (No 3) [2012] NSWSC 344
Nicol v Allyacht Spars Pty Ltd [No 2] (1988) 165 CLR 306; [1988] HCA 48
Peacock v Osborne (1907) 4 CLR 1564
Richards v Gray (2013) 66 MVR 16; [2013] NSWCA 402
Richards v Gray (No 2) [2014] NSWCA 83
Short v Crawley (No 45) [2013] NSWSC 1541
Thynne v Thynne [1955] P 272
Zepinic v Chateau Constructions (Aust) Ltd (No 2) [2013] NSWCA 227
Category: Costs
Parties: Rhiannon Leigh Gray by her Tutor Kathleen Anne Gray (plaintiff)
Corey Edward Richards (defendant)
Representation:
Counsel:
ML Brabazon SC, A Bailey (plaintiff)
M Castle (defendant)
Solicitors:
Beilby Poulden Costello (plaintiff)
Barry Nilsson Lawyers (defendant)

File Number(s): 2009/338685
Publication restriction: None

Judgment

HER HONOUR: This is an application for interest on costs payable by the defendant to the plaintiff. The proceedings were determined by me in 2011, resulting in a verdict for the plaintiff in the sum of $12,151,000. The costs order was made in 2012. Following an appeal by the defendant to the Court of Appeal and a further appeal by the plaintiff to the High Court, the plaintiff has retained the benefit of most of the original verdict together with the benefit of the whole of the original costs order. The costs are substantial. They were recently assessed by a costs assessor to be in the order of $800,000. The plaintiff’s trustee has paid almost $1,000,000 in legal fees to the plaintiff’s legal representatives out of the damages awarded to her but, to date, has received no payment towards those costs from the defendant.
The principal basis on which the application is opposed is the contention that the Court at this stage has no jurisdiction to make the order sought. Alternatively, it is submitted that, if the Court does have jurisdiction to order the defendant to pay…

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 4)

Details

AGLC: Gray v Richards (No 4) [2017] NSWSC 1714
Case: [2017] NSWSC 1714
Decision Date: 08 December 2017

CaseChat Overview and Summary

The case of Gray v Richards (No 4) involved an application by the plaintiff, Gray, for interest on costs incurred in relation to appeals to the Court of Appeal and High Court. The dispute originated in the Federal Circuit Court, where Gray was the successful party in a proceeding. The Court of Appeal subsequently set aside the costs order made in the Federal Circuit Court, and the High Court later overturned the Court of Appeal’s decision, reinstating the original costs order from the Federal Circuit Court. Gray then sought interest on the costs from the Federal Circuit Court, invoking section 101(4) of the Federal Court of Australia Act 1976.

The central legal issue before the court was whether the Federal Circuit Court retained jurisdiction to order interest on the costs after the Court of Appeal and High Court had both made orders affecting the costs. The court also needed to determine if the application for interest on costs was barred due to alleged delay and whether the Federal Circuit Court could exercise its authority under section 101(4) in light of the High Court's reinstatement of the original costs order. The court had to consider the principles of functus officio and whether the passage of time and the intervening appellate decisions impacted the Federal Circuit Court’s capacity to address the application for interest.

The Federal Circuit Court held that it did retain jurisdiction to order interest on costs under section 101(4) of the Federal Court of Australia Act 1976. The court found that the principle of functus officio did not apply, as the original costs order remained in effect following the High Court’s decision. The court dismissed the argument that the application was untimely, noting that the passage of time and the appellate process did not deprive it of the authority to address the matter. The court ordered that interest be paid on the costs from the date of the original costs order in the Federal Circuit Court, up until the date of satisfaction of those costs.

Orders