Halikos Hospitality Pty Ltd v Inpex Operations Australia Pty Ltd - [2017] NTSC 17

Halikos Hospitality Pty Ltd & Ors v Inpex Operations Australia Pty Ltd
[2017] NTSC 17
PARTIES:HALIKOS HOSPITALITY PTY LTD

AND
HALIKOS PTY LTD
AND
HALIKOS INVESTMENTS PTY LTD
v
INPEX OPERATIONS AUSTRALIA PTY LTD

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:9 of 2016 (21611352)
DELIVERED:  3 MARCH 2017
HEARING DATES:  Written Submissions
JUDGMENT OF:  MASTER LUPPINO
CATCHWORDS:

Practice and Procedure – Costs – Application for an extension of the time fixed by a Court Order for the filing of affidavit evidence – General rule in respects of costs in such applications – Costs remain discretionary in any case – Factors relevant to the exercise of the discretion.
Supreme Court Rules, r 63.11(5) and (9), 63.18
Holt v Wynter (2000) 49 NSWLR 128.
Bashour v VCAT (No 2) (2016) VSC 666.
Law of Costs, Dal Pont G, LexisNexis Butterworths, Second Edition
REPRESENTATION:
Counsel:
Plaintiffs:Mr Williams
Defendant:Mr Christrup
Solicitors:
Plaintiff:Paul Maher Solicitors
Defendant:Halfpennys Lawyers
Judgment category classification: B
Judgment ID Number: Lup1702

Number of pages: 6

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Halikos Hospitality Pty Ltd & Ors v Inpex Operations Australia Pty Ltd
[2017] NTSC 17
No. 9 of 2016 (21611352)

BETWEEN:
HALIKOS HOSPITALITY PTY LTD

And
HALIKOS PTY LTD
And
HALIKOS INVESTMENTS PTY LTD
Plaintiffs
AND:
INPEX OPERATIONS AUSTRLIA PTY LTD

Defendant

CORAM: MASTER LUPPINO
REASONS
(Delivered 3 March 2017)

These reasons deal with an application for costs consequent upon an application by the Defendant for an extension of the time fixed by Court orders for the filing of affidavit evidence.
The substantive proceedings involve an extensive and complicated factual matrix in the context of a number of complex causes of action. As a result, much longer than the norm was allowed for the process of preparing affidavits of evidence.
The orders for the filing and service of affidavit evidence were made at a Case Management Conference on 2 August 2016. At that time the Defendant expressed the view that the time I allowed might be insufficient.
The evidence timetable was set with the usual staggered sequence namely, that the Plaintiffs file and serve their affidavits of evidence in chief by 31 October 2016, followed by the Defendant’s evidence in chief and in reply by 30 November 2016, in turn followed by the Plaintiffs’ affidavits in reply to the Defendant’s evidence by 23 December 2016. Although the trial of the action was not to occur until the May civil sittings, scheduled to commence on 1 May 2017, a mediation was scheduled for late February 2017 and the affidavits were required for that purpose.
The Defendant sought an extension of the time to file and serve its affidavits of evidence in chief and in reply to the Plaintiffs’ evidence in chief to 23 December 2016 with a consequent extension to 6 February 2017 for the Plaintiffs to file their evidence in reply. Those orders were ultimately made, save that the time for the Plaintiffs to file their evidence in reply was extended to 13 February 2017.
With that background, the following of the Supreme Court Rules (“SCR”) specifically apply, namely:-
63.11 No order for costs required in certain cases
(1)-(4)Omitted
(5)Where a party applies for an extension or abridgement of a time fixed by these Rules or by an order fixing, extending or abridging time, he shall pay the costs of and occasioned by the application.
(6)-(8)Omitted
(9)This rule is subject to such other order as the Court makes.
63.18 Interlocutory application
Each party shall bear his own costs of an interlocutory or other application in a proceeding, whether made on or without notice, unless the Court otherwise orders.
The general rule in respect of interlocutory applications is that each party bears their own costs unless the Court otherwise orders. However, in this case rules 63.11(5) and (9) specifically apply. Rule 63.11(5) is to the effect that the party applying for an extension of time is to pay the costs of that application. The rule reflects the position, colloquially known as the indulgence principle, which is to the effect that as the party seeking the extension has not complied with an order, they consequently seek an indulgence from the Court and usually bears the costs of that application.
However, rule 63.11(5) is only a starting point. That is clear by reason of rule 63.11(9) which provides that sub-rule (5) is subject to such other order that the Court makes. No criteria are set in sub-rule (9) and consequently the Court has an unfettered discretion limited only by the usual principles that the discretion, being judicial, must be properly exercised and having regard to all relevant facts and circumstances.
The Plaintiffs submitted that the position ordinarily adopted by courts is that the respondent to the application is awarded its costs unless the resistance of the application was unreasonable. The Plaintiffs rely on Holt v Wynter[1] and Bashour v VCAT (No 2)[2].
The Defendant submits that Holt v Wynter can be distinguished on the basis that it dealt with an extension of time to commence a time barred proceeding. For that matter Bashour v VCAT (No 2) also involved an application for the extension of time to commence proceedings, albeit that in that case the proposed proceedings were judicial review and therefore, as in the case of the SCR, the time limit was fixed by the equivalent rule in the Victorian Rules of Court.
Extensions of time for commencing proceedings, at least where the extension applications are authorised separately to the SCR, may be considered to be in a different category to the current case as once the requirements for an extension are fulfilled, with or without the exercise of a residual discretion, the applicant can be said to be entitled to the extension. In that sense it is not truly an indulgence.[3]
Regardless, it is clear from the SCR and, as was confirmed in Bashour, any general rule does not restrict the Court’s overall discretion. Whether or not a respondent has acted reasonably is just a factor to be taken into account in the exercise of the full discretion. In Bashour, despite a specific statement to the effect that respondents had not acted unreasonably, they were ordered to pay costs.
The Plaintiffs argue that their opposition to the application was not unreasonable. Although I did not make any finding in that respect in my brief reasons when I ruled on the application, I think it is also relevant that the Plaintiffs’ basis for opposition largely rested on a claim that actual prejudice would result if the application was granted. That was a matter that was not established by the evidence relied on by the Plaintiffs.
With that background, other factors relevant to the exercise of the discretion in my view, in summary form, are:-
1.   The Defendant expressed the view, at the Case Management Conference when the orders for affidavit evidence were made, that the time allowed might be insufficient;
2.   The Plaintiffs filed and served their affidavits of evidence in chief as ordered;
3.   The Defendant identified the need for the current application early and made the application before the time for filing its affidavits had elapsed;
4.   The Defendant produced acceptable evidence that they had made genuine attempts to comply with the orders but were in the end unable to comply, something which I accepted in the course of my reasons for granting the extension;
5.   The Defendant had, at the outset, indicated to the Plaintiffs that they would agree to a consequent extension of the time fixed for the filing of the Plaintiffs’ affidavit evidence in reply;
6.   The Defendant resisted an order that its evidence be staggered by fixing separate due dates for the evidence in chief component and the component in reply to the Plaintiffs’ evidence in chief; such an order may have gone part way at least to alleviating any possible prejudice to the Plaintiffs;
7.   The Plaintiffs failed to satisfy me, on the available evidence, that actual prejudice would result;
8.   The Defendant was wholly successful on the application.
Weighing up all of those matters, as the Defendant did seek an indulgence but the Plaintiffs were unable to establish the claimed prejudice on which the Plaintiffs’ resistance of the application was based, I have come to the conclusion that the appropriate order is that the costs of the application be costs in the proceedings with a certificate that the application was fit for counsel and I so order.

[1] (2000) 40 9NSWLR 128.

[2] (2016) VSC 666.

[3]See Law of Costs, Dal Pont G, LexisNexis Butterworths, Second Edition at para 14.41 and the cases there cited.