Reported Decision:
6 DCLR (NSW) 243
District Court
CITATION: Judd v Warwick (Costs) [2007] NSWDC 300 HEARING DATE(S): Written submissions
JUDGMENT DATE:
20 November 2007JURISDICTION: Civil JUDGMENT OF: Johnstone DCJ at 1 DECISION: The defendants are to pay the plaintiff’s costs of the motions, including any costs arising from the defendants’ application for costs, on the ordinary basis CATCHWORDS: COSTS - presumption that costs follow the event - whether presumption displaced because the successful party was seeking some sort of indulgence from the court by way of favour or dispensation - the 'indulgence principle' is not one of inflexible general application - no relevant conduct on the part of the successful plaintiff such as would justify displacement of the presumption LEGISLATION CITED: Civil Procedure Act 2005: s 56, s 57, s 63
Uniform Civil Procedure Rules (UCPR) 2005: r 42.1CASES CITED: AMC Caterers Pty Ltd v Stavropoulos [2005] NSWCA 79
Anglo Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [1951] 1 All ER 873
Berrico Estate Pty Ltd v Andersen [2003] NSWCA 23
Brittain v Commonwealth (No 2) [2006] NSWSC 528
Commonwealth of Australia v Lewis [2007] NSWCA 127
Commonwealth of Australia v Smith [2005] NSWCA 478
Fordham v Fordyce [2007] NSWCA 129
Heaps v Addison Wesley Longman Australia Pty Ltd [2000] NSWSC 542.
Holt v Wynter [2000] NSWCA 143
Knight v Clifton [1971] Ch 700
Ng v Chong [2005] NSWSC 385
Oshlack v Richmond River Council (1998) 193 CLR 72
Re: Nardell Coal Corporation (In liq) v Hunter Valley Coal Processing [2003] NSWSC 642
Smith v Grant [2006] NSWCA 244
Tolcher v Gordon [2005] NSWCA 135
Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111
Williams v Lewer [1974] 2 NSWLR 91PARTIES: Andrew Timothy Judd (Plaintiff)
Stephen Mark Warwick and Alexander Meadows Rendel (Defendants)FILE NUMBER(S): 56/06 at Gosford COUNSEL: Mr R Quickenden (Plaintiff)
Mr M Dicker (Defendant)SOLICITORS: Brazel Moore Lawyers (Plaintiff)
Middletons (Defendant)
REASONS FOR JUDGMENT
Introduction
1. On 7 September 2007 judgment was delivered in respect of two interlocutory motions in these proceedings. The remaining issue concerns the proper order as to costs of those motions.
2. The plaintiff brought one of the motions, seeking orders as to the service of the Statement of Claim, and the other motion was brought on behalf of the defendants seeking an order declaring that the Statement of Claim had not been duly served. The plaintiff’s motion succeeded, and the defendants’ motion was dismissed. I ordered that the time for service be extended and deemed service of the Statement of Claim to have been validly effected upon the defendants on 18 November 2006.
3. The plaintiff sought an order for costs in his favour, in accordance with the presumption that costs follow the event: r 42.1 of the UCPR. The defendants opposed that application and in turn sought an order that the plaintiff pay their costs, in accordance with the so-called “indulgence principle”, which assumes displacement of the presumption in…
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- AGLC
- Judd v Warwick (Costs) [2007] NSWDC 300
- Case
- [2007] NSWDC 300
- Decision Date
CaseChat Overview and Summary
In addressing the legal issues, the court examined whether there was any conduct by the plaintiff that could be seen as seeking a favour or dispensation from the court, which might justify disregarding the presumption that costs follow the event. The court emphasised that the principle of indulgence is not a rigid rule but rather one that applies flexibly in certain contexts. After careful consideration of the circumstances and conduct of the parties, the court concluded that there was no relevant conduct by Judd that would warrant a deviation from the usual cost-following rule.
Consequently, the court ruled in favour of Judd, determining that the defendants should bear the costs of the motions, including any costs associated with the defendants' own application for costs. This decision reaffirmed the application of the presumption that costs follow the event unless there is a compelling reason to the contrary. The court's ruling was definitive in upholding the principle unless specific circumstances were present that warranted a different outcome. The final orders mandated that the defendants would be responsible for the plaintiff's costs of the motions on the ordinary basis.
Orders
Orders of the court
The defendants are to pay the plaintiff's costs of the motions, including any costs arising from the defendants' application for costs, on the ordinary basis
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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