Landbridge Transport Pty Limited v Buckley (No 2)

[2014] NSWSC 1469

Supreme Court

New South Wales

Medium Neutral Citation:

Landbridge Transport Pty Limited v Buckley (No 2) [2014] NSWSC 1469

Hearing dates:

Written submissions

Decision date:

27 October 2014

Before:

Bellew J

Decision:

1.The defendant is to pay the plaintiff's costs of the proceedings in this Court, as agreed or assessed.

2.The Costs of the Local Court proceedings are to abide the outcome of those proceedings.

Catchwords:

APPEAL - Costs - Whether successful party should nevertheless pay a portion of unsuccessful party's costs in light of the conduct of the appeal - Costs of the proceedings in the court below

Legislation Cited:

Uniform Civil Procedure Rules 2005

Cases Cited:

Landbridge Transport v Buckley [2014] NSWSC 1379

Category:

Costs

Parties:

Landbridge Transport Pty Limited - Plaintiff
Garry Buckley - Defendant

Representation:

Counsel:
Solicitors:

File Number(s):

2014/75955

Publication restriction:

Nil

 Decision under appeal 

Date of Decision:

2014-02-13 00:00:00

Before:

Magistrate G Bradd

Judgment

1. In this matter I allowed an appeal brought by the plaintiff against a decision of Magistrate Bradd in the Local Court and made orders remitting the matter to the Magistrate to be further dealt with conformably with my judgment: Landbridge Transport v Buckley [2014] NSWSC 1379.

1. At the time of handing down judgment I gave the parties an opportunity to make submissions to me in relation to the question of costs.

1. Both parties have submitted that the costs of the proceedings in the Local Court should abide the outcome of those proceedings. However, the parties are at issue concerning the costs of the proceedings before me.

SUBMISSIONS OF THE PLAINTIFF

1. Counsel for the plaintiff submitted that costs should follow the event unless there is some reason justifying a departure from that rule: Uniform Civil Procedure Rules 2005 Part 42 Rule 1. Counsel submitted that the plaintiff had succeeded in having the orders of the court below set aside and that properly viewed, it had been totally successful in the proceedings. It was submitted that in these circumstances there was no reason to depart from the general rule.

1. Counsel for the plaintiff accepted that the grounds of appeal in the originating summons raised a number of potential issues which, ultimately, were not pursued. However, he pointed out that in written submissions filed in advance of the hearing, and also at the commencement of the hearing, the issues were substantially refined to the point where it was evident that the plaintiff's principal complaint was that the Magistrate's reasons were inadequate. It was submitted that having found this to be the case, it had been unnecessary for me to proceed to determine any further matters which had been initially relied upon.

1. It was submitted that in all of these circumstances, there was nothing which warranted any variation to the general rule.

SUBMISSIONS OF THE DEFENDANT

1. Counsel for the defendant pointed out that there were numerous grounds of appeal raised in the summons and that as a consequence, a significant proportion of the written submissions of both parties addressed those other grounds, many of which were not ultimately pursued. It was submitted that the "matters on which the appellant (sic) was successful and unsuccessful (were) clearly dominant or separable" and that because the plaintiff's success was limited to a finding based on two errors of law, the defendant should not be ordered to pay the plaintiff's costs of appeal.

1. It was submitted in the alternative that in the event that I was minded to make an order that the defendant pay the plaintiff's costs, such order should be limited to requiring the defendant to pay only a proportion of such costs.

CONSIDERATION

1. In my principal judgment (at [19]) I set out the grounds of appeal pleaded in the originating summons. I observed (at [20]) that there were numerous shortcomings in the manner in which those grounds had been pleaded. In other circumstances, those shortcomings may well have had an effect upon the terms of any costs orders which were appropriate.

1. However in the present case, it was apparent upon reading the plaintiff's written submissions that the primary basis upon which the appeal was brought was that the Magistrate had failed to provide adequate reasons. Although there were other matters which were relied upon, it was obvious that the asserted inadequacy of the Magistrate's reasons was the plaintiff's principal complaint. That was confirmed at the commencement of the hearing.

1. The fact that this was so could hardly have taken the defendant by surprise. In fact, having read the defendant's written submissions, it is apparent that the defendant was clearly aware of the primary basis upon which the appeal was brought. The structure of the defendant's submissions recognised that although a number of grounds of appeal were separately pleaded, the vast majority of them were directed towards the plaintiff's principal complaint. The defendant's written submissions also separately addressed the Magistrate's error in failing to properly identify the issues which were before him: see [49]-[51] of my previous judgment. This was a second matter upon which the plaintiff had relied.

1. In these circumstances I am not able to accept the submission made by counsel for the defendant that there was a separation between matters on which "the appellant (sic) was successful and unsuccessful". The fact is that the plaintiff was successful upon the principal bases upon which it relied. Having concluded that the reasons were not adequate, and having further concluded that the Magistrate had not properly identified the issues before him, it was not necessary for me to consider any of the other matters upon which reliance had originally been placed.

1. The plaintiff was successful in the proceedings and there is no reason why costs should not follow the event.

ORDERS

1. I make the following orders:

(1)   The defendant is to pay the plaintiff's costs of the proceedings in this Court, as agreed or assessed.

(2)   The Costs of the Local Court proceedings are to abide the outcome of those proceedings.

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