Levi v Swaab (No 2) - [2020] NSWSC 1733

Supreme Court

New South Wales

Medium Neutral Citation: Levi v Swaab (No 2) [2020] NSWSC 1733
Hearing dates: 3 December 2020
Date of orders: 3 December 2020
Decision date: 03 December 2020
Jurisdiction: Equity
Before: Parker J
Decision:
See [14]

Catchwords:
COSTS – party/party – general rule that costs follow the event – proceedings discontinued or dismissed –order in favour of the plaintiff conditional on payment of defendant’s costs – failed to satisfy condition

Category: Costs
Parties: Joel Levi by his tutor Collin Levi (First Plaintiff)
Sam Levi by his tutor Collin Levi (Second Plaintiff)
Judith Swaab (First Defendant)
Bronwyn Joy Pott (Second Defendant
Representation:
Solicitor advocate:
B Balasubramanian (Plaintiffs)

Counsel:
S Chapple (Defendants)
Solicitors:
Marsdens (Plaintiffs)
Keypoint Law (Defendants)

File Number(s): 2019/67199
Publication restriction: Nil

Judgment – EX TEMPORE

Revised from transcript; issued 7 December 2020

In these proceedings Mr Collin Levi, to whom I will refer as “the plaintiff”, made an application as tutor for his grandsons for preliminary discovery in aid of potential claims against the estate of their other grandfather, Mr Frederick Swaab. On 2 September 2019 the application was dismissed by the Registrar. The plaintiff then applied to review the Registrar's decision, and that application came before me in August 2020.
On 12 August I announced my decision on the application and adjourned the proceedings to 18 August, for the purpose, as I then expected, of making final orders. I delivered oral judgments on both 12 and 18 August, which together were published as Levi v Swaab [2020] NSWSC 1119.
I concluded on 12 August that the application for preliminary discovery should succeed. This was not as a result of any error in the decision by the Registrar. It was simply because, on the material presented to me I thought, looking at the matter de novo, that the plaintiff had made out a case for preliminary discovery.
As I described it later, the plaintiff only succeeded by the skin of his teeth. I thought that the application was not a strong one. But rather than shut the plaintiff out completely I thought the appropriate course was to allow the application, on terms designed to protect the executors of the estate from prejudice.
I therefore decided that I would make an order in the plaintiff’s favour on two conditions. The first was that the plaintiff should pay a sum of money to the executors on account of the costs order made against him in the proceedings, including the costs order already made by the Registrar, which I considered should not be disturbed. The second condition was that the plaintiff should provide security for the costs of providing the preliminary discovery itself. I announced these conclusions at the end of my judgment on 12 August.
When the matter returned before me on 18 August there was a debate about the extent of the costs order I should make. In the end, for reasons I gave, I thought the appropriate course would be to leave the…

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 Levi v Swaab (No 2)

Details

AGLC: Levi v Swaab (No 2) [2020] NSWSC 1733
Case: [2020] NSWSC 1733
Decision Date: 03 December 2020

CaseChat Overview and Summary

Levi and Swaab were involved in a legal dispute, with Levi as the plaintiff and Swaab as the defendant. The matter was heard in the Supreme Court of Victoria. The central issue in this case was whether the plaintiff was entitled to costs after the proceedings were discontinued, and whether the order made in favour of the plaintiff was conditional on the payment of the defendant’s costs.

The court examined the general rule that costs follow the event of the proceedings. The plaintiff sought to recover costs despite the proceedings being discontinued. The court held that the order made in favour of the plaintiff was conditional on the payment of the defendant’s costs. As the condition was not satisfied, the plaintiff was not entitled to recover costs. The court emphasised the importance of the terms of any order made in the proceedings, particularly when it comes to the allocation of costs. The court found that the plaintiff had failed to meet the condition set out in the order, which meant that they were not entitled to recover costs.

The court dismissed the plaintiff's application for costs, holding that the order made in favour of the plaintiff was conditional on the payment of the defendant’s costs. The court emphasised that the terms of any order made in the proceedings are crucial when it comes to the allocation of costs. The plaintiff's failure to satisfy the condition set out in the order meant that they were not entitled to recover costs.

Orders