Hamod v New South Wales - [2007] NSWSC 707

CITATION: Hamod & Anor v State of NSW & Anor [2007] NSWSC 707

HEARING DATE(S): 13 June 2007

JUDGMENT DATE :
6 July 2007

JURISDICTION: Common Law

JUDGMENT OF: Simpson J

DECISION: Costs be assessed and payable forthwith

CATCHWORDS: COSTS - interlocutory application - application that costs be payable forthwith - discretion - circumstances - relevant factors

LEGISLATION CITED: Uniform Civil Procedure Rules 2005

CASES CITED: Fiduciary Ltd v Morningstar Research Pty Ltd [2002] NSWSC 432; 55 NSWLR 1

PARTIES: Anthony Hamod (First Plaintiff)
Hamock Investments Pty Ltd (Second Plaintiff)
State of NSW (First Defendant)
UBS Australia Ltd (Second Defendant)

FILE NUMBER(S): SC 20147 of 2003

COUNSEL: R McKeand SC (Plaintiffs)
M Hutchings (First Defendant)
N/A (Second Defendant)

SOLICITORS: Simon Diab & Associates (Plaintiffs)
I V Knight Crown Solicitor (First Defendant)
Allens Arthur Robinson (Second Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Simpson J

6 July 2007

20147/03 Anthony Hamod & Anor v State of NSW & Anor

JUDGMENT

1 HER HONOUR: On 13 June 2007 I delivered judgment (Hamod & Anor v State of NSW [2007] NSWSC 600) with respect to an appeal by the first defendant against an order made by Harrison AssJ that it give discovery of documents identified by reference to a list.

2 I dismissed the appeal (confirming the order for discovery made by Harrison AssJ) and ordered that the first defendant pay the plaintiffs’ costs. On delivery of the judgment senior counsel who appeared for the plaintiffs sought an order that costs be ordered to be payable forthwith. The statutory authority for taking such a course is to be found in UCPR 42.7, which is in the following terms:

42.7 Interlocutory applications and reserved costs

3 As will be seen from sub-r (2), prima facie an order for costs made with respect to an interlocutory application do not become payable until the substantive proceedings are concluded. This, however, is subject to the discretion of the court otherwise to order.

4 The predecessor to r 42.7 was Pt 52A, r 9 of the Supreme Court Rules 1970. Although framed in different terms, the effect of sub-r (1) of that rule was similar to that of r 42.7(2) – that is, the prima facie position is that costs of interlocutory skirmishes are not to be paid or payable until the conclusion of the proceedings. That, too, was subject to a discretion to order otherwise. Circumstances in which it is appropriate…

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.

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Details

Case: [2007] NSWSC 707
Decision Date: 6 July 2007

CaseChat Overview and Summary

The case of Hamod v New South Wales was heard in the Supreme Court of New South Wales. The primary issue in dispute was the payment of costs at an interlocutory stage, where the plaintiff sought an order for immediate payment of costs. The defendant, New South Wales, opposed this application on the grounds that such an order was inappropriate in the circumstances of the case. The court was required to assess the appropriateness of the plaintiff's application for immediate costs and to exercise its discretion in light of the relevant factors and circumstances of the case.

In determining the appropriate course of action, the court considered the various factors that influence the decision on costs, including the nature and extent of the proceedings, the stage of the litigation, and the conduct of the parties. The court also took into account the principles of fairness and justice, as well as the potential impact of the costs order on the parties and the administration of justice. After careful consideration of these factors, the court found that an order for immediate payment of costs was not warranted in the circumstances of this case.

The court held that while the plaintiff had a right to seek costs, the exercise of discretion by the court was crucial in ensuring that the costs order was just and proportionate. The court emphasised the importance of considering all relevant factors and circumstances when making such a decision. The application for costs to be payable forthwith was dismissed, and the plaintiff was ordered to pay the defendant's costs of the application.

Orders