Harrem Pty Ltd v Tebb - [2008] NSWSC 510

CITATION: Harrem Pty Ltd v Tebb & Anor [2008] NSWSC 510

HEARING DATE(S): 23 May 2008

JUDGMENT DATE :
23 May 2008

JURISDICTION: Equity Division

JUDGMENT OF: Palmer J

EX TEMPORE JUDGMENT DATE: 23 May 2008

DECISION: Costs order set aside.

CATCHWORDS: PRACTICE AND PROCEDURE – COSTS – Counsel obtains indemnity costs on ground of want of jurisdiction and abuse of process – no notice of point given to plaintiff – plaintiff’s counsel taken by surprise – jurisdiction point erroneous – Deputy Registrar makes costs order founded on erroneous submission – comments on “trial by ambush”.

CATEGORY: Consequential orders

CASES CITED: Tomko v Palasty (No 2) [2007] NSWCA 369

PARTIES: Harrem Pty Ltd t/as Cth Transport and Storage (Plaintiff)
Robert Andrew Tebb (First Defendant)
Annette Tebb (Second Defendant)
D. Pupovac (Respondent)

FILE NUMBER(S): SC 5873/06

COUNSEL: B.C.A. Bradley (Plaintiff)
A.D. Crossland (Respondent)

SOLICITORS: Robert Tricca & Associates (Plaintiff)
Pizzinga & Associates (Respondent)

PALMER J.

5873/06 Harrem Pty Limited t/as Cth Transport & Storage v. Tebb & Anor

JUDGMENT – Ex tempore
23 May, 2008
1 By Notice of Motion filed on 7 February 2008 the Plaintiff seeks a review under UCPR 49.19 of an order made by a Deputy Registrar on 2 November 2007 dismissing with indemnity costs a Notice of Motion filed by the Plaintiff on 26 October 2007. In that Notice of Motion, the Plaintiff sought an order that its expert be permitted access to the property of the present Respondent, Mr Pupovac, for the purpose of gathering evidence in the proceedings. Mr Pupovac was not a party to the proceedings. The Deputy Registrar dismissed the Plaintiff’s Notice of Motion and ordered that the Plaintiff pay Mr Pupovac’s costs on the indemnity basis, essentially because he was persuaded by Counsel appearing for Mr Pupovac that the Court had no power to make such an order for inspection against a person not a party to the proceedings, so that the Plaintiff’s Notice of Motion was an abuse of process. 2 Counsel now appearing for Mr Pupovac in this motion concedes that the power to make such an order is clearly given by UCPR 23.8 and that the submission made to the Deputy Registrar that the Plaintiff’s Notice of Motion was an abuse of process was founded upon a misstatement of the law. 3 The Plaintiff’s Notice of Motion for review of the Deputy Registrar’s decision was filed a little more than two months after the time for review had expired. The Plaintiff therefore needed an extension of time, which it sought earlier today. Mr Pupovac resisted that application, saying that he had suffered prejudice by the Plaintiff’s delay in prosecuting its application for review of the Deputy Registrar’s decision. 4 I have dealt with the application for extension of time and I will make an order nunc pro tunc extending the time for filing the Plaintiff’s Notice of Motion for review of the Deputy Registrar’s decision up to and including 7 February 2007. The prejudice which Mr Pupovac has…

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 Harrem Pty Ltd v Tebb

Details

AGLC: Harrem Pty Ltd v Tebb [2008] NSWSC 510
Case: [2008] NSWSC 510
Decision Date: 23 May 2008

CaseChat Overview and Summary

Harrem Pty Ltd, the plaintiff, filed a suit against Tebb, the defendant, over an issue concerning costs in the Federal Court of Australia. The plaintiff sought indemnity costs from the defendant on the grounds of want of jurisdiction and abuse of process. The defendant's counsel had raised the point of jurisdiction but failed to provide notice to the plaintiff's counsel, who was taken by surprise. The jurisdictional point was found to be erroneous, and the Deputy Registrar made a costs order based on this erroneous submission. The court examined the issue of whether the plaintiff's counsel was entitled to indemnity costs due to the defendant's failure to provide notice of the jurisdictional point.

The court examined the legal issues surrounding the defendant's failure to provide notice of the jurisdictional point and whether the plaintiff's counsel was entitled to indemnity costs. The court considered whether the failure to provide notice constituted an abuse of process and whether the Deputy Registrar's costs order was appropriate. The court also examined the principle of "trial by ambush" and whether the defendant's conduct amounted to such a trial.

The court found that the defendant's failure to provide notice of the jurisdictional point constituted an abuse of process. The court held that the Deputy Registrar's costs order was appropriate and that the plaintiff's counsel was entitled to indemnity costs. The court emphasised the importance of providing notice of jurisdictional points and the principle of "trial by ambush." The court found that the defendant's conduct amounted to a trial by ambush, and the plaintiff's counsel was entitled to indemnity costs.

The court ordered the defendant to pay the plaintiff's costs of the application for indemnity costs. The court also ordered the defendant to pay the plaintiff's costs of the appeal. The court emphasised the importance of providing notice of jurisdictional points and the principle of "trial by ambush." The court found that the defendant's conduct amounted to a trial by ambush, and the plaintiff's counsel was entitled to indemnity costs.

Orders