Jon McLaurin McGeoch v Henri Hendriks & 7 Ors (No 2)

[2007] NSWSC 364

CITATION:	Jon McLaurin McGeoch v Henri Hendriks & 7 Ors (No 2) [2007] NSWSC 364
HEARING DATE(S):	13/04/07
JUDGMENT OF:	Gzell J
EX TEMPORE JUDGMENT DATE:	13 April 2007
DECISION:	Plaintiff to have costs other than those of issues abandoned. Defendant to have those costs.
CATCHWORDS:	PROCEDURE - Costs - Issues abandoned by plaintiff at beginning of trial - Plaintiff successful - Whether plaintiff should pay costs of the abandoned issues
CASES CITED:	Sellars v Adelaide Petroleum (NL) (1994) 179 CLR 332 Malec v J C Hutton Pty Limited (1990) 169 CLR 638 Cretazzo v Lombardi (1975) 13 SASR 4 Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261
PARTIES:	Jon McLaurin McGeoch (Plaintiff) Henri Hendriks (First Defendant) Robert George Stone (Second Defendant) Ian Erratt (Third Defendant) Frederick John Commins (Fourth Defendant) Glen Francis Lollback (Fifth Defendant) Geoffrey John Potter (Sixth Defendant) William James Thompson (Seventh Defendant) Peter James Webb (Eigth Defendant)
FILE NUMBER(S):	SC 04151/03
COUNSEL:	M Condon (Plaintiff) A Colefax SC (Defendant)
SOLICITORS:	Walsh and Blair (Plaintiff) Colin Biggers & Paisley (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

FRIDAY APRIL 13 2007

4154/03 JON MCLAURIN MCGEOCH v HENRI HENDRIKS & 7 ORS (NO 2)

EX TEMPORE JUDGMENT

1 I have before me rival orders to finalise this matter, my reasons for judgment having been previously published.

2 The first issue was with respect to the amount of damages. I was referred to what was said in Sellars v Adelaide Petroleum (NL) (1994) 179 CLR 332 at 350:

“In Malec v J C Hutton Pty Limited (1990) 169 CLR 638, this court drew a distinction between, on the one hand, proof of historical facts - what has happened - and, on the other hand, proof of future possibilities and past hypothetical situations. The civil standard of proof applies to the first category but not to the second, particularly when it is necessary to determine future possibilities and past hypothetical situations for the purpose of assessing damages."

3 It was submitted that for assessment of damage purposes the appropriate loss of chance percentage would be in the range of 51% to 60%. I have said in my reasons for judgment that I have no doubt that the deceased would have signed an agreement if drawn up by the solicitor, Mr Hendriks. If it had been necessary for me to express a percentage of that loss of chance, it would have been closer to 100% and certainly in excess of the suggested range.

4 In those circumstances, the order proposed by the plaintiff with respect to the amount of damages is to be preferred to that submitted by the defendant.

5 The second issue is with respect to costs. There is no argument that costs should be assessed on the ordinary basis to 9 December 2004 and on an indemnity basis thereafter.

6 What is sought is an exclusion of costs associated with issues that were abandoned at the commencement of the trial. The ordinary rule is that costs follow the event and the ordinary rule is that if, in the course of the trial, some issues are lost but the predominant ones are won, there should be no differential order as to costs on an issues basis.

7 In Cretazzo v Lombardi (1975) 13 SASR 4 at 16 Jacobs J said:

“But trials occur daily in which the party, who in the end is wholly or substantially successful, nevertheless fails along the way on particular issues of fact or law. The ultimate ends of justice may not be served if a party is dissuaded by the risk of costs from canvassing all issues, however doubtful, which might be material to the decision of the case.”

See also Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261.

8 In this case, however, there was a deliberate decision to abandon issues at the commencement of the trial and it seems to me that this case stands in contradistinction to those to which I have referred and forms an exception that both of those cases leave open.

9 In the exceptional circumstances of the abandonment of the issues it seems to me appropriate, in the exercise of my discretion, that I exclude from the order for costs the costs of the issues thus abandoned. I prefer the order proposed by the defendant to that proposed by the plaintiff in this regard.