Higgins v Gungahlin Golf Investments Pty Ltd

[2020] ACTSC 95

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Higgins v Gungahlin Golf Investments Pty Ltd

Citation:

[2020] ACTSC 95

Hearing Date(s):

16 April 2020

DecisionDate:

21 April 2020

Before:

Crowe AJ

Decision:

See [13]

Catchwords:

COSTS – Interlocutory costs order – whether assessment and recovery of costs related to an application in proceedings should be delayed until the end of the substantive proceedings

Legislation Cited:

Court Procedures Act 2004 (ACT)

Court Procedure Rules 2006 (ACT)

Cases Cited:

Richmond v Ora Gold Ltd [2020] FCA 70

Parties:

Judith Frances Higgins (Plaintiff)

Gungahlin Golf Investments Pty Ltd (Defendant)

Representation:

Counsel

Mr Arthur (Plaintiff)

Mr Larkings (Defendant)

Solicitors

Badgery & Rafferty (Plaintiff)

Trinity Law (Defendant)

File Number(s):

SC 306 of 2019

Crowe AJ:

1. On 7 February 2020 I ordered, on a provisional basis, the following:

Order (6) The assessment and recovery of the costs [ordered in favour of the second defendant] be stayed until completion of the litigation.

As a result of other orders made at that time, the second defendant is now the only defendant in this action. However, to avoid confusion, I will continue to refer to Gungahlin Golf Investments Pty Ltd as the second defendant.

1. I stayed Order (6) for 14 days to allow the affected parties to seek a different order. The second defendant advised the Court that it did wish to seek a different order.

1. The second defendant asked the Court to vacate Order (6) so that it could recover its costs in relation to its Application in Proceeding filed on 23 August 2019 now, rather than having to wait until the end of the matter.

1. The second defendant argued that while orders deferring the recovery of interlocutory costs are often made, the Court retains a discretion to make such an order. The second defendant said that each case turns on its own circumstances.

1. The second defendant made reference to the relevant criteria summarised by Colvin J in Richmond v Ora Gold Ltd [2020] FCA 70 (Richmond) at [33]. Mr  Larkings, counsel for the second defendant, submitted that the current proceedings are at an early stage, and that the issues dealt with in the Application in Proceeding were discrete and so it should be a straightforward exercise for the costs to be assessed. Mr Larkings submitted that an inference could be made from the correspondence between the solicitors for the parties (Exhibit “D1” on this application) that the plaintiff is in a position to meet any costs order and that the immediate recovery of costs would not stultify her claim against the second defendant.

1. It was further submitted by Mr Larkings that there is uncertainty as to how long it will take to finalise the substantive proceedings. The default position under the Court Procedure Rules 2006 (ACT) would mean that the second defendant would not recover interest on the costs until they are assessed. Mr Larkings also noted that no security for costs has been provided by the plaintiff.

1. Mr Arthur, counsel for the plaintiff, responded as follows:

(1)There is no issue that the plaintiff would be able to meet the costs. However, that is not to say she has ready reserves of liquid funds.

(2)It will not be straightforward to determine the degree to which costs, incurred in dealing with the Application in Proceeding, will be costs that the second defendant would have had to have incurred in any event in relation to the substantive proceedings. Thus, Mr Arthur argued, the assessment process should not be undertaken until the end of the proceedings.

(3)Mr Arthur took issue with the submission as to the uncertainty of the length of time it will take to complete the matter, notwithstanding the appeal in relation to the position of the Territory. In any event, Mr Arthur submitted that if the delay in completion is lengthy it is always open to the second defendant to seek a different order in relation to the running of interest on the costs.

1. Having considered the submissions, I am not persuaded that the circumstances here call for an order permitting the immediate taxation of the interlocutory costs. In Richmond, Colvin J expressed the justification for deferring interlocutory costs recovery as follows:

[28]  Ordinarily, costs are awarded on the basis that they will be paid when the proceedings have concluded. Approaching the matter in that way avoids the considerable burden of multiple taxations and allows for set offs as between costs orders made in the course of the same proceeding.

1. Making due allowance for the difference in the relevant court procedure rule in the Federal Court of Australia, it seems to me that there is much force in his Honour’s comment. These proceedings are likely to involve complex litigation which could well involve discovery and possibly interrogatories. There is a distinct possibility that it will require multiple interlocutory applications. Having regard to s 5A of the Court Procedures Act 2004 (ACT), I see the resolution of all relevant costs issues between the parties at the end of the matter as the preferable outcome.

1. In so far as the completion of this action is delayed for a lengthy period, either because of the Territory appeal or otherwise, it would certainly be open for the second defendant to seek an order for interest on costs to run from the date of the costs order, rather than the date of assessment.

1. In the course of submissions, Mr Larkings submitted that the word “litigation” in Order (6) was ambiguous. It could, for example, include appellate proceedings. In the circumstances, I propose to substitute “proceeding” for “litigation”. However, the substance of Order (6) will remain the same.

1. The plaintiff has succeeded in resisting the substance of the second defendant’s application. Consequently, I will order that the second defendant pay the plaintiff’s costs of this application. I will, however, defer the assessment and recovery of those costs until the completion of the matter.

Orders

1. The orders of the Court are:

(1)Order (6) made on 7 February 2020 is amended to provide as follows: The assessment and recovery of the costs referred to in Order (5) be stayed until the completion of the proceeding.

(2)The second defendant is to pay the plaintiff’s costs of the application to vacate Order (6) made on 7 February 2020.

(3)The costs referred to in Order (2) are not to be assessed until the end of the proceeding.

I certify that the preceding thirteen [13] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Crowe

Associate:

Date: