Hawcroft v Jamieson (No 2) - [2017] NSWSC 1599

Supreme Court

New South Wales

Medium Neutral Citation: Hawcroft v Jamieson (No 2) [2017] NSWSC 1599
Hearing dates: On the papers(Last submissions received 20 November 2017)
Decision date: 24 November 2017
Before: Gleeson JA
Decision:
(1)   Defendants to pay 60 percent of the plaintiff’s costs of the proceedings.

(2) The defendants pay to the plaintiff interest on costs and disbursements, at the prescribed rate as defined in s 101(7) of the Civil Procedure Act 2005 (NSW), on the Allowed Percentage of each amount of costs and disbursements actually paid by the plaintiff, from the date of payment by the plaintiff of each such amount of costs and disbursements until such time as the defendants have paid the costs due to the plaintiff pursuant to order (1), where:

(a)   the Allowed Percentage equals ((Y/X) x 100%);

(b)   Y – equals the total amount of costs and disbursements allowed on assessment to the plaintiff under order (1);

(c)   X – equals the total amount of costs and disbursements which the plaintiff has paid or is liable to pay to her legal advisers in connection with these proceedings.
(3)   There be liberty to apply in the event of any difficulty in working out interest under order (2).
.
Catchwords:
COSTS – appropriate order as to costs – where defendants seek a different costs order from that indicated preliminarily in primary judgment – where plaintiff failed on a dominant issue but successful in obtaining other relief sought – where amount of time directed to the issue on which plaintiff failed was significant – whether appropriate to disturb preliminary view as costs.
COSTS – where order for interest on costs not opposed by the unsuccessful defendants – appropriate form of order for interest on costs to take account of reduced percentage of costs payable due to plaintiff’s mixed success.
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 98, 101(4), 101(5), 101(7)
Uniform Civil Procedure Rules, r 42.1
Cases Cited: Australian Receivables Ltd v Tekitu Pty Ltd [2011] NSWSC 1425
Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304
Commonwealth of Australia v Gretton [2008] NSWCA 117
Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219
Hancock v Rinehart (Costs) [2016] NSWSC 11
Lahoud v Lahoud [2006] NSWSC 126
Leppington Pastoral Co Pty Ltd v Chief Commissioner of State Revenue (No 2) [2017] NSWSC 68
Penson v Titan National Pty Ltd (No 3) [2015] NSWCA 121
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45
Spedding v Nobles (No 2) [2007] NSWCA 87
Sze Tu v Lowe (No 2) [2015] NSWCA 91
Category: Costs
Parties: Jennifer Hawcroft (Plaintiff)
Michelle Jamieson (First Defendant)
John Hawcroft (Second Defendant)
Representation:
Counsel:
Mr T Alexis SC / Ms L Coleman (Plaintiff)
Mr BA Coles QC / Mr M Sneddon (Defendants)
Solicitors:
Jenkins Legal Services (Plaintiff)
Fox & Staniland (Defendants)

File Number(s): 2016/383547

Judgment

GLEESON JA: Judgment in this matter was delivered on 31 October…

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: [2017] NSWSC 1599
Decision Date: 24 November 2017

CaseChat Overview and Summary

The case of Hawcroft v Jamieson (No 2) involved the defendants seeking a different costs order from that indicated preliminarily in the primary judgment. The plaintiff, Hawcroft, had partially succeeded in their action but failed on a dominant issue. The defendants argued that the amount of time directed to the issue on which the plaintiff failed was significant and that the preliminary view as to costs should be disturbed. The court was required to decide whether it was appropriate to alter the preliminary costs order and what form the order for interest on costs should take, given that the unsuccessful defendants did not oppose the order for interest.

The court considered the principle that a plaintiff who partially succeeds in an action should not be penalised for their failure on a dominant issue. It examined the amount of time directed to the issue on which the plaintiff failed and the overall success of the plaintiff. The court noted that the plaintiff had been successful in obtaining other relief sought and that the amount of time directed to the failed issue was significant. However, the court also recognised that the preliminary view as to costs should not be easily disturbed. After weighing these considerations, the court concluded that it was not appropriate to alter the preliminary view as to costs but did make adjustments to the order for interest on costs to account for the plaintiff’s mixed success.

The court determined that the order for interest on costs should reflect the reduced percentage of costs payable due to the plaintiff’s partial success. The court made a specific order for interest on the costs, taking into account the mixed success of the plaintiff and the reduced percentage of costs payable. This adjustment ensured that the order for interest on costs was fair and reflected the outcome of the case accurately.

The final orders of the court included the adjustment to the order for interest on costs to account for the plaintiff’s mixed success. The court did not alter the preliminary view as to costs but made a specific order for interest on the costs, reflecting the reduced percentage of costs payable due to the plaintiff’s partial success.

Orders