Hargood v Ohtl Public Company Ltd (No. 2)

[2015] NSWSC 511

Supreme Court

New South Wales

Medium Neutral Citation:	Hargood v OHTL Public Company Ltd (No. 2) [2015] NSWSC 511
Hearing dates:	1 May 2015
Date of orders:	01 May 2015
Decision date:	01 May 2015
Jurisdiction:	Common Law
Before:	Davies J
Decision:	1. Plaintiff’s application for payment of costs forthwith re Notice of Motion filed 15 September 2014 refused. 2. Plaintiff to pay Defendants’ costs of this application.
Catchwords:	PROCEDURE - costs – when payable – application by Defendant for stay by reason of inappropriate forum – application dismissed with costs – whether costs payable forthwith – ordinary rule – whether case is out of the ordinary – application refused.
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Alstom Powell Limited v Yokogawa Australia Pty Limited [2006] SASC 87 Courtney v Medtel Pty Limited (No 3) [2004] FCA 347 Fiduciary Limited v Morningstar Research Pty Limited [2002] NSWSC 432; (2002) 55 NSWLR 1 In the matter of Elsmore Resources Limited [2014] NSWSC 1390
Category:	Costs
Parties:	Jane Louise Hargood (Plaintiff) OHTL Public Company Ltd (First Defendant) Mandarin Oriental Hotel Group Limited (Second Defendant) Mandarin Oriental International Limited (Third Defendant)
Representation:	Counsel: H Chiu (Plaintiff) C O Gleeson (Defendants) Solicitors: W.G. McNally Jones Staff (Plaintiff) Baker & McKenzie (Defendants)
File Number(s):	2014/176760

Judgment

1. I gave judgment on the Defendant's Motion to stay the proceedings on 24 April 2015. I dismissed the Defendant's Notice of Motion and ordered that the Defendant pay the Plaintiff's costs of the Motion. I also made some ancillary orders concerning amendments to the Statement of Claim and I gave leave to file an Amended Statement of Claim subject to the Plaintiff paying the Defendant's costs thrown away by reason of the filing of the Amended Statement of Claim.

2. The Plaintiff now applies under rule 42.7(2) Uniform Civil Procedure Rules 2005 (NSW) that the costs I ordered in favour of the Plaintiff be payable forthwith. The Plaintiff accepted, nevertheless, that if such an order was to be made it would be appropriate that the costs that the Plaintiff was to pay to the Defendant should also be ordered to be paid forthwith.

3. Reliance was placed by the Plaintiff on the judgment of Debelle J in the Supreme Court of South Australia in Alstom Powell Limited v Yokogawa Australia Pty Limited [2006] SASC 87, where the relevant rule which Debelle J was considering on a similar application was, in substance, the same as rule 42.7(2). Debelle J made reference to policy reasons underlying the basis for the similar Federal Court rule set out by Sackville J in Courtney v Medtel Pty Limited (No 3) [2004] FCA 347. He also made reference to Fiduciary Limited v Morningstar Research Pty Limited [2002] NSWSC 432; (2002) 55 NSWLR 1 which has become a significant decision in this State when considering applications such as the present. He summarised the sorts of cases that Barrett J in Fiduciary Limited had referred to as being the sorts of cases where it might be appropriate to depart from the prima facie position that costs are not payable until the conclusion of the proceedings.

4. Those cases were these. First, where the interlocutory proceeding represents the determination of a separately identifiable matter or may be viewed as a completion of a discrete aspect of the action. Secondly, where there has been unreasonable conduct on the part of the party against whom costs orders have been made. Thirdly, a considerable time remains before the proceedings will ultimately be determined.

5. The application that had been before Debelle J was an application to cross-vest proceedings from South Australia to New South Wales. That Motion was unsuccessful. Debelle J, in making an order that the costs be paid forthwith, relied on the early discrete nature of the interlocutory application and to the fact that the successful party in that case may not have been able to enjoy the benefit of the order for costs for a reasonably lengthy period of time. Mr Chiu of counsel for the Plaintiff identifies the similarity of the applications made in that case and the bases upon which Debelle J decided the costs application with the relevant issues in the present matter.

6. The Plaintiff expressly abjures any notion that there has been unreasonable conduct on the part of the Defendant in the present case. The Plaintiff is right to take that position. Nevertheless, reliance is placed on the fact that this is an early, discrete interlocutory application and that in the ordinary course of events the present proceedings are unlikely to be concluded for a considerable period of time. It is my estimate, based on the state of the Court lists in this Court at the present time that it would be optimistic to think the proceedings would, if they went to trial, conclude in less than two years.

7. The application is opposed. The Defendant submits in particular, and in reliance on the judgment of Black J In the matter of Elsmore Resources Limited [2014] NSWSC 1390 that the ordinary rule is that costs should only be payable at the conclusion of the proceedings. There are legitimate reasons for that being the ordinary rule, not the least of which is that it tends to avoid multiple assessments of costs at various stages of the proceedings. Such assessments might well prove to be time wasting and pointless by costs orders that are made for and against parties at various times during the course of the proceedings.

8. Black J said at [5]:

In summary, an order that costs be paid forthwith is an exception which will only be made in a case that is out of the ordinary. Such an order has the capacity to stultify proceedings particularly brought by persons with limited resources, and also has the risk of operating unfairly where, over the course of the proceedings, there may be orders which are made that one or other party should pay the costs of the other from time to time.

9. Whilst I accept that the present application was an early, discrete interlocutory application and that the proceedings will not conclude in the ordinary course for a period of time, perhaps up to two years, it does not seem to me that there is anything particularly out of the ordinary in the present case to justify the Court otherwise ordering under rule 42.7(2). In particular, it is accepted by the Plaintiff that she is not without means to run and maintain the proceedings. So much was made evident in the course of evidence on the interlocutory application. She claims a considerable amount of money for loss of earnings from what is an apparently successful medical practice. Were the position that the Plaintiff was in a position of some impecuniosity and was perhaps being provided with legal assistance on a 'no win no pay basis' that would be a case that was out of the ordinary in the circumstances of an application such as the present.

10. The ordinary rule is that costs should be payable when proceedings are concluded. I do not consider that there is anything out of the ordinary in this case and the application for payment of costs forthwith is refused.

11. I order that the Plaintiff pay the Defendant's costs of this application.

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Decision last updated: 06 May 2015