Judd v Warwick (Costs)

[2007] NSWDC 300

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 2007
JURISDICTION:	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 42.1
CASES 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 91
PARTIES:	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…