Kishore v Transit Systems West Pty Ltd (No 2)

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Kishore v Transit Systems West Pty Ltd (No 2) [2022] NSWDC 119

Hearing dates:

On the papers
(Submissions closed 20 April 2022)

Date of orders:

21 April 2022

Decision date:

21 April 2022

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

See paragraph [9]

Catchwords:

COSTS – determination of basis for costs order concerning dismissal of summons

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 98

Uniform Civil Procedure Rules 2005, r 42.5

Cases Cited:

Harrison v Schipp (2002) 54 NSWLR 612

Kishore v Transit Systems West Pty Ltd [2022] NSWDC 93

Category:

Costs

Parties:

Chandra Kishore (Plaintiff)
Transit Systems West Pty Ltd (Defendant)

Representation:

Counsel:
Ms J Kishore, solicitor (Plaintiff)
Mr C Micali (Defendant)

Solicitors:
A&J Montgomery Legal (Plaintiff)
Kemp & Co Lawyers (Defendant)

File Number(s):

2022/38072

Publication restriction:

None

Judgment

1. These reasons concern the costs consequences of a dismissed summons by by which the plaintiff sought to appeal a decision of the Small Claims Division of the Local Court. The summons was filed by the plaintiff on 9 February 2022. It was dismissed on 31 March 2022: Kishore v Transit Systems West Pty Ltd [2022] NSWDC 93.

2. Consequent upon that disposition, subject to what follows, the ordinary costs consequence should follow, namely, the plaintiff should bear the defendant’s costs of the dismissed summons: Uniform Civil Procedure Rules 2005, r 42.5.

3. The Court’s costs jurisdiction confers a wide discretion for determining costs disputes: s 98 of the Civil Procedure Act 2005 (NSW).

4. At the time the plaintiff’s summons was dismissed he was not in a position to fully respond to the defendant’s claim for costs. It was therefore agreed that the parties would forward written submissions on costs by 7 April 2022. At the request of the plaintiff that date was later extended to 19 April 2022. It was also agreed that the costs issue should be decided on the papers with the outcome published on Caselaw to avoid the parties incurring further expense in a relatively small claim.

5. The defendant’s costs submissions were supported by an affidavit from Ms Maria Peronace, solicitor, affirmed on 30 March 2022. The defendant sought an order that the plaintiff pay the defendant’s costs on an indemnity basis from 8 March 2022, at which time the defendant had notified the plaintiff that indemnity costs would be sought as the defendant considered the appeal was without merit. The defendant also submitted that its costs should be paid by the plaintiff pursuant to a claim for a lump sum costs order in the indemnity amount of $17,323.75, which included counsels’ fees in the amount of $7873.25.

6. The plaintiff’s submissions were dated 19 April 2022 and were in the form of his affidavit sworn on 18 April 2022. Contrary to the defendant’s submissions, the plaintiff seeks an order that the defendant’s costs should be assessed for fairness and reasonableness by a Costs Assessor in the event those costs remain the subject of dispute as to quantum.