Kiel v Buttelig - [2015] NSWLC 32

Local Court

New South Wales

Medium Neutral Citation: Kiel v Buttelig [2015] NSWLC 32
Hearing dates: 6 August 2015
Decision date: 10 September 2015
Jurisdiction: Civil
Before: Keogh LCM
Decision:
The defendant’s costs be paid by the plaintiff in the amount as agreed or assessed. Exceptional circumstances have not been established to warrant an order on an indemnity basis.

Catchwords: CIVIL PROCEEDINGS – discontinuance – costs – ordinary rule that plaintiff is to pay defendant’s costs unless court orders otherwise – ordinary rule not a fetter to general discretion to order costs - displacement of the ordinary rule - principles
Legislation Cited: Civil Procedure Act 2005, s 98
Uniform Civil Procedure Rules 2005, r 42.19
Cases Cited: Fordyce v Fordham [2006] NSWCA 274
Foukkare v Angreb Pty Ltd [2006] NSWCA 335
Johnson v Clancy [2010] NSWSC 1301
Oshlack v Richmond River Council [1998] HCA 11
Category: Costs
Parties: Julie Kiel (plaintiff)
Diana Buttelig (first defendant)
Bob Soo (second defendant)
Representation:
Solicitors:
Mr M Jaku (for the plaintiff)
Counsel:
Mr T Bland (for the defendants)

File Number(s): 2013/379869

Judgment

This is a dispute about costs on the discontinuance of proceedings. The plaintiff seeks to discontinue the proceedings on the basis that each party bear their own costs. The defendants are of the view that the plaintiff should bear her own costs and additionally pay the defendants’ costs.
The motion came before me on 6 August 2015.
Resolution of the matter is governed by section 98 of the Civil Procedure Act 2005 and rule 42.19 of the Uniform Civil Procedure Rules.
Section 98 is in these terms:

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 or on an indemnity basis.

(2)    Subject to rules of court and to this or any other Act, a party to proceedings may not recover costs from any other party otherwise than pursuant to an order of the court.
(3)    An order as to costs may be made by the court at any stage of the proceedings or after the conclusion of the proceedings.
(4)    In particular, at any time before costs are referred for assessment, the court may make an order to the effect that the party to whom costs are to be paid is to be entitled to:
(a)   costs up to, or from, a specified stage of the proceedings, or
(b)   a specified proportion of the assessed costs, or
(c)   a specified gross sum instead of assessed costs, or
(d)   such proportion of the assessed costs as does not exceed a specified amount.

(5) The powers of the court under this section apply in relation to a married woman, whether as party, tutor, relator or otherwise, and…

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 Kiel v Buttelig

Details

AGLC: Kiel v Buttelig [2015] NSWLC 32
Case: [2015] NSWLC 32
Decision Date: 10 September 2015

CaseChat Overview and Summary

The matter before the court was a dispute between Kiel, the plaintiff, and Buttelig, the defendant. The primary issue at hand was the allocation of costs in civil proceedings, specifically regarding the circumstances under which the ordinary rule that the plaintiff is to bear the defendant's costs could be displaced. The case was heard in the Supreme Court of Victoria.

The legal issues the court needed to address were whether the ordinary rule of costs is a limitation on the court's general discretion to order costs and what principles govern the displacement of this ordinary rule. The court needed to determine whether exceptional circumstances existed that would warrant an order for the defendant to be paid costs on an indemnity basis.

The court found that the ordinary rule is not a constraint on the general discretion of the court to order costs. Instead, the ordinary rule provides a starting point for the court's discretion. The court emphasised that it has broad discretion to order costs in a way that is just and equitable, and this discretion is not limited by the ordinary rule. The court also noted that the ordinary rule can be displaced in exceptional circumstances. However, in this case, the plaintiff had not demonstrated that such exceptional circumstances existed. Consequently, the court ruled that the defendant's costs should be paid by the plaintiff, as per the ordinary rule, but there were no exceptional circumstances to warrant an indemnity order.

Orders

Orders of the court

The defendant’s costs be paid by the plaintiff in the amount as agreed or assessed. Exceptional circumstances have not been established to warrant an order on an indemnity basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Kiel v Buttelig [2015] NSWLC 32
Hearing dates:	6 August 2015
Decision date:	10 September 2015
Jurisdiction:	Civil
Before:	Keogh LCM
Decision:	The defendant’s costs be paid by the plaintiff in the amount as agreed or assessed. Exceptional circumstances have not been established to warrant an order on an indemnity basis.
Catchwords:	CIVIL PROCEEDINGS – discontinuance – costs – ordinary rule that plaintiff is to pay defendant’s costs unless court orders otherwise – ordinary rule not a fetter to general discretion to order costs - displacement of the ordinary rule - principles
Legislation Cited:	Civil Procedure Act 2005, s 98 Uniform Civil Procedure Rules 2005, r 42.19
Cases Cited:	Fordyce v Fordham [2006] NSWCA 274 Foukkare v Angreb Pty Ltd [2006] NSWCA 335 Johnson v Clancy [2010] NSWSC 1301 Oshlack v Richmond River Council [1998] HCA 11
Category:	Costs
Parties:	Julie Kiel (plaintiff) Diana Buttelig (first defendant) Bob Soo (second defendant)
Representation:	Solicitors: Mr M Jaku (for the plaintiff) Counsel: Mr T Bland (for the defendants)
File Number(s):	2013/379869