Gregory Dieter Amann as Executor of the Estate of NORMA Chin deceased v Rick Nathan Dulihanty

[2003] ACTSC 27

GREGORY DIETER AMANN as Executor of the Estate of NORMA CHIN deceased
 v RICK NATHAN DULIHANTY
[2003] ACTSC 27 (2 May 2003)

PRACTICE AND PROCEDURE – costs – usual practice – public interest considerations.

Sheehy v Mitchell Crane Hire Pty Ltd (1991) 102 ACTR 1

Oshlack v Richmond River Council (1998) 193 CLR 92

No. SC 192 of 2001

Judge:           Higgins CJ
Supreme Court of the ACT
Date:            2 May 2003

IN THE SUPREME COURT OF THE       )
  )          No. SC 192 of 2001
AUSTRALIAN CAPITAL TERRITORY    )

BETWEEN:GREGORY DIETER AMANN as Executor of the Estate of NORMA CHIN deceased

Plaintiff

AND:RICK NATHAN DULIHANTY

Defendant

ORDER

Judge:  Higgins CJ
Date:  2 May 2003
Place:  Canberra

THE COURT ORDERS THAT:

1. The defendant pay the plaintiff’s costs of and incidental to these proceedings.

1. In this matter, I entered judgment in favour of the plaintiff on 30 January 2003.  Costs were reserved.

1. The “usual rule” is that costs should follow the event. That is, this defendant should pay the plaintiff’s costs.

1. The defendant’s contention is, first, to assert that the award of costs is always discretionary.  That is not disputed.  Mr Hassall points out that the plaintiff sues in a representative capacity.  The loan in question was in the context of a family arrangement which had been inadequately documented.  There was some suggestion in the evidence that this was the result of legal advice from a solicitor.

1. That lack of documentation may well, Mr Hassall submitted, have given rise to misunderstandings as to the true terms of the arrangement, thus precipitating the litigation.

1. Mr Lunney, in reply, pointed out that this was, despite the family context, an ordinary commercial dispute.  It became a probate action only after its commencement when Ms Chin died.

1. Further, whilst there had been a lack of documentation, the defendant had been aware both of his obligation to repay the loan, as the Court found, and had attempted to conceal his non-compliance by tendering deposit records that falsely overstated the extent of his repayments.

1. It may be added that the defendant made no attempt to negotiate a solution to the dispute with either Ms Chin or with the executor.

1. In my view, there is no sufficient reason in this case to do other than follow the usual practice as to costs.

1. I acknowledge that in Sheehy v Mitchell Crane Hire Pty Ltd (1991) 102 ACTR 1, 10-13, I accepted, and still do, that public interest considerations may lead to the exercise of the discretion as to costs differently from that usual rule of practice (see also Oshlack v Richmond River Council (1998) 193 CLR 92).

1. There are, however, no such countervailing considerations in this case.

1. There will be an order that the defendant pay the plaintiffs costs of and incidental to these proceedings.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date:     2 May 2003

Counsel for the plaintiff:  Mr G Lunney

Solicitor for the plaintiff:  Rod J Barnett & Associates

Counsel for the defendant:  Mr D A Hassall

Solicitor for the defendant:  Mr J Horniblow

Date of hearing:  17 February 2003

Date of judgment:  2 May 2003