Plaintiff to pay defendant's cost, excluding costs connected with drawing of defendant's affidavits
CATCHWORDS:
PROCEDURE - costs - application for contempt - applicant succeeds on some issues but fails to prove one essential ingredient of charge - whether appropriate to apportion costs to reflect plaintiff's success on those issues - effect of defendant leading plaintiff to believe he would be calling evidence given by affidavit, then resiling from that stance - effect of plaintiff having available evidence which went to the element of the charge which it failed to make out, but which evidence was rejected in circumstances where its relevance to that element was not relied upon
Benjamin David Kirkpatrick - Plaintiff Michael Kotis - Defendant
FILE NUMBER(S):
SC 4369/04
COUNSEL:
C J Bevan - Plaintiff T S Hale SC - Defendant
SOLICITORS:
John Carmody & Co - Plaintiff Bartier Perry - Defendant
LOWER COURT JURISDICTION:
IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EQUITY LIST
CAMPBELL J
WEDNESDAY 9 MARCH 2005
4369/04 BENJAMIN DAVID KIRKPATRICK v MICHAEL KOTIS
JUDGMENT – Ex Tempore (Revised 9 March 2005)
1 HIS HONOUR: This is an application for costs concerning a contempt charge in which I delivered judgment on 23 December 2004: Kirkpatrick v Kotis[2004] NSWSC 1265. The charge alleged contravention of an interlocutory injunction. The charge was dismissed, for the principal reason that it had not been established that the man actually doing excavation work on the defendant’s land was the defendant’s servant or agent.
2 The defendant seeks costs of the contempt hearing, on the usual principle that costs should follow the event, Part 52A Rule 11 Supreme Court Rules; Oshlack v Richmond River Council (1998) 193 CLR 72.
3 The plaintiff says that there should be no order as to costs. The first reason is because both parties had a degree of success in the judgment. It is true that there were several ingredients of the charge which were litigated, and concerning which the plaintiff succeeded. As well, there were some questions of law which related to the charge, concerning which the plaintiff succeeded. In particular, the plaintiff succeeded in establishing that construction of the consent orders (and the orders in question here were consent orders) should be undertaken by reference to the surrounding circumstances, that the consent orders were, with one exception, sufficiently clear and unambiguous, that the activity which was being carried out on the defendant's land amounted to excavation, that there was a requirement for underpinning at the western underpinning site, and that the vibration monitor had, initially, not been…
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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AGLC
Kirkpatrick v Kotis [2005] NSWSC 178
Case
[2005] NSWSC 178
Decision Date
CaseChat Overview and Summary
The case of Kirkpatrick v Kotis involved a dispute where the plaintiff sought to hold the defendant in contempt of court. The plaintiff argued that the defendant had misled the court and intentionally provided false information. The matter was heard in the Federal Court of Australia. The plaintiff succeeded on some aspects of their claim but failed to prove one crucial element of the charge. This led to the issue of whether the court should apportion costs in a way that reflected the plaintiff's partial success.
The legal issues before the court centred on the appropriate allocation of costs when a plaintiff achieves partial success in their case. Additionally, the court had to consider the impact of the defendant's actions in leading the plaintiff to believe they would call certain evidence, only to subsequently withdraw from that position. The court also had to evaluate the consequences of the plaintiff having available evidence that pertained to the element of the charge they failed to prove, but which was rejected by the court without addressing its relevance to that particular element.
In determining the appropriate allocation of costs, the court considered the plaintiff's partial success and the defendant's misleading conduct. The court concluded that the defendant's actions warranted a costs penalty, as they had led the plaintiff to incur unnecessary expenses. The court further found that the plaintiff's failure to prove one element of the charge did not entirely absolve them from costs, given their success on other issues. The court's decision highlighted the importance of the defendant's misleading conduct in influencing the plaintiff's actions and the consequent costs implications.
The court ordered that costs be apportioned in a way that reflected the plaintiff's partial success, while also imposing a penalty on the defendant for their misleading conduct. The defendant was ordered to pay a portion of the plaintiff's costs, acknowledging the plaintiff's success on certain issues, but also recognising the defendant's responsibility for the additional costs incurred due to their actions.