Kelly v Szatow (No 2) - [2020] NSWSC 596

Supreme Court

New South Wales

Medium Neutral Citation: Kelly v Szatow (No 2) [2020] NSWSC 596
Hearing dates: On the papers
Date of orders: 20 May 2020
Decision date: 20 May 2020
Jurisdiction: Common Law - Administrative Law
Before: Harrison AsJ
Decision:
The Court orders that:
(1) The plaintiff is to pay the defendants’ costs of the appeal proceedings on an ordinary basis.
Catchwords: COSTS – Indemnity costs – No point of principle
Legislation Cited: Civil Procedure Act 2005 (NSW), s 98
Evidence Act 1995 (NSW), s 119
Uniform Civil Procedure Rules 2005 (NSW), rr 20.26(5), 42.1, 42.2
Cases Cited: Calderbank v Calderbank [1975] 3 All ER 333
Cat Media Pty Ltd v Allianz Australia Insurance Ltd [2006] NSWSC 790
Kelly v Szatow [2020] NSWSC 407
Mulhern v Pearce (No 2) [2014] FCA 805
Oshlack v Richmond River Council (1998) 193 CLR 72
Rogers v Rogers (No 2) [2020] NSWSC 574
Salfinger v Nuigini Mining (Australia) Pty Ltd (No 4) [2007] FCA 1594
Spalla v St George Motor Finance Ltd [2006] FCA 1537
Category: Costs
Parties: Peter Kelly (Plaintiff)
Cheryl Szatow (First Defendant)
Martin Smith (Second Defendant)
Donna Greenfield (Third Defendant)
Jeff Pettett (Fourth Defendant)
Representation:
Counsel:
PE King (Plaintiff)
M Hall (Defendants)
Solicitors:
Robert Balzola and Associates (Plaintiff)
Colin Biggers & Paisley (Defendants)

File Number(s): 2019/96146
Publication restriction: Nil

Judgment

HER HONOUR: On 16 April 2020, I handed down judgment in Kelly v Szatow [2020] NSWSC 407 (“the appeal proceedings”) dismissing the plaintiff’s appeal in respect of five decisions of the New South Wales Civil and Administrative Tribunal (“the Tribunal”). Costs of the appeal proceedings were reserved. I made an order that if the parties could not come to an agreement as to costs within 7 days, the plaintiff and defendants were to file and serve written submissions in accordance with a timeline. Those submissions were to be limited to 3 pages.
The parties were unable to come to an agreement and I have received their submissions. The plaintiff’s submissions were drafted by his counsel, Mr PE King.
In short, the plaintiff seeks that there be no order as to costs, or that any such order be made by instalments out of the plaintiff’s allowance as a Councillor. The defendants seek an order that the plaintiff pay their costs of the appeal proceedings on an indemnity basis. Alternatively, they seek their costs of the appeal proceedings on an ordinary basis up until 20 May 2019 and on an indemnity basis thereafter.

The law

The starting point in awarding costs is s 98 of the Civil Procedure Act 2005 (NSW). It relevantly reads:

“98 Courts powers as to costs
(1) Subject to rules of court and to this or any other Act:
(a) costs are in the discretion of the court, and
(b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and
(c) the court may order that costs are to be awarded on the ordinary basis…

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.

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Details

Case: [2020] NSWSC 596
Decision Date: 20 May 2020

CaseChat Overview and Summary

The case of Kelly v Szatow (No 2) was heard in the Supreme Court of Victoria, where the respondent sought indemnity costs following the failure of his appeal. The appellant had previously obtained costs orders against the respondent in the County Court and the Supreme Court. The respondent argued that the case had no point of principle and sought to avoid paying indemnity costs. The court had to determine whether the appeal had any prospect of success and whether the case had a point of principle that warranted indemnity costs.

The central legal issue before the court was whether the respondent's appeal had any prospect of success and whether it had a point of principle that justified the imposition of indemnity costs. The court examined the merits of the appeal and the respondent's arguments for avoiding indemnity costs. The court also considered the principle that indemnity costs should only be awarded if the appeal was vexatious, frivolous, or without merit, and if the case had no point of principle. The court held that the appeal had no reasonable prospects of success and that the case did not have a point of principle that warranted indemnity costs.

In its reasoning, the court noted that the appeal was an attempt to relitigate issues that had already been determined by the County Court and the Supreme Court. The court found that the appeal was not based on any new evidence or argument and that it was an abuse of process. The court held that the appeal was vexatious and without merit, and that the case did not have a point of principle that warranted indemnity costs. The court ordered the respondent to pay the appellant's costs of the appeal on an indemnity basis. The court also noted that the appellant had a right to seek indemnity costs, and that the respondent had failed to demonstrate any reason why the order should not be made. The court held that the appeal had no reasonable prospects of success and that the case did not have a point of principle that warranted indemnity costs. The court ordered the respondent to pay the appellant's costs of the appeal on an indemnity basis.

Orders