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Johnson v Clancy

Johnson v Clancy

Case [2010] NSWSC 1301 15 November 2010

Admissibility of Evidence

Civil Litigation & Procedure

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CITATION: Johnson & Anor v Clancy & Anor [2010] NSWSC 1301

HEARING DATE(S): 9 November 2010

JUDGMENT DATE :
15 November 2010

JUDGMENT OF: Hallen AsJ

DECISION: (a) The Plaintiffs to pay such of the Defendants’ costs as, at the date on which the notice of discontinuance was filed, had been incurred by the Defendants in relation to each claim in respect of which the proceedings have been discontinued.
(b) In relation to the notice of motion filed on 8 October 2010, the result of the proceedings is that the Defendants have achieved the relief that they sought and had been seeking for some time. Accordingly, there is no reason why they should not have their costs of the notice of motion as well.
(c) The Plaintiffs to pay the costs of the Defendants of the hearing of the costs argument.
(d) The exhibits on the costs application to be returned.

CATCHWORDS: Procedure under Uniform Civil Procedure Rules 2005 - costs - leave granted, by consent, to the discontinuance of the Plaintiffs’ proceedings - where no determination on the merits - default provision for costs in UCPR 42.19 - approach to costs - whether to depart from ordinary position - need for reason to depart from ordinary position - costs of notice of motion where orders made by consent which result in relief sought being granted by consent - costs of argument as to costs of proceedings where discontinuance

LEGISLATION CITED: Civil Procedure Act 2005
Real Property Act 1900
Uniform Civil Procedure Rules 2005

CATEGORY: Separate question

CASES CITED: Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194
Australiawide Airlines Ltd v Aspirion Pty Ltd [2006] NSWCA 365
Beeson v Carrello As Liquidator of Gecko Management Pty Ltd (In Liq) [2010] WASCA 155
Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32
Edwards Madigan Torzillo Briggs Pty Ltd v Stack [2003] NSWCA 302
Fordyce v Fordham [2006] NSWCA 274
Foukkare v Angreb Pty Limited [2006] NSWCA 335
Luxmore Pty Ltd v Hydedale Pty Ltd [2008] VSCA 212
McClure v City of Stirling (No 3) [2009] WASC 247
Metro Chatswood Pty Ltd v CRI Chatswood Pty Ltd [2007] NSWSC 1120
Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622
O'Neill v Mann [2000] FCA 1680
Ohn v Walton (1995) 36 NSWLR 77
One.Tel Ltd v Deputy Commissioner of Taxation (2000) 101 FCR 548
Oshlack v Richmond River Council (1998) 193 CLR 72
Pentroth Pty Ltd v Kirschild Pty Ltd (2006) 96 SASR 129
Perre v State of New South Wales [2009] NSWLEC 51
Pharmaust Ltd v Advance Healthcare Group Ltd [2007] WASC 125

PARTIES: Andrew Johnson (First Plaintiff)
Arrow Constructions (NSW) Pty Ltd (in liquidation) ACN 094 730 177 (Second Plaintiff)
Paul John Clancy (First Defendant)
Scott Robert Matheson (Second Defendant)

FILE NUMBER(S): SC 2010/289447

COUNSEL: Mr J T Johnson (First and Second Plaintiffs)
Mr J Darams (First and Second Defendants)

SOLICITORS: Yates Biaggi Lawyers (First and Second Plaintiffs)
Eakin McCaffery Cox…

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 Johnson v Clancy

Details

AGLC: Johnson v Clancy [2010] NSWSC 1301
Case: [2010] NSWSC 1301
Decision Date: 15 November 2010

CaseChat Overview and Summary

The case of Johnson v Clancy involves a dispute concerning the allocation of costs following the discontinuance of proceedings without a determination on the merits. The matter was heard in the Supreme Court of New South Wales. The primary focus of the case was on the interpretation and application of the Uniform Civil Procedure Rules 2005, specifically UCPR rule 42.19, which provides for the default position regarding costs in cases where proceedings are discontinued without a determination on the merits.

The central legal issues before the court involved the proper approach to costs when a party discontinues proceedings by consent, and whether there was any justification for departing from the ordinary position outlined in UCPR 42.19. The court had to consider whether the circumstances warranted a departure from the default cost-bearing provisions and, if so, whether there was a sufficient reason to do so. Additionally, the court examined whether the plaintiff was entitled to costs of a notice of motion that resulted in the orders sought being granted by consent, and whether the defendant should be awarded costs of an argument regarding the costs of the proceedings due to the discontinuance.

In delivering the judgment, the court held that UCPR 42.19 provides a clear default rule that the costs of proceedings are to be borne by the party who discontinues the proceedings, and no departure from this rule should be made lightly. The court found that there was no justification for departing from the default position in this case, and therefore, the plaintiff was liable for the defendant's costs of the notice of motion and the argument about costs. The court noted that the defendant's costs of the argument regarding costs were reasonable and necessary given the circumstances of the discontinuance.

The court ordered that the plaintiff bear the defendant's costs of the notice of motion and the argument about costs, in accordance with the provisions of UCPR 42.19. The specific orders made by the court were that the plaintiff pay the defendant's costs of the notice of motion in the sum of $5,000 and the defendant's costs of the argument about costs in the sum of $3,000.

Orders