Lowe v Tu (No 2)

[2021] NSWDC 438

District Court

New South Wales

Medium Neutral Citation:

Lowe & Anor v Tu & Anor (No 2) [2021] NSWDC 438

Hearing dates:

20 August 2021 (Written Submissions)

Date of orders:

25 August 2021

Decision date:

25 August 2021

Jurisdiction:

Civil

Before:

Coleman SC DCJ

Decision:

1. The defendants are to pay the plaintiffs’ costs of the proceedings.

Catchwords:

COSTS – Costs Assessment – General Rule that Costs Follow the Event – Uniform Civil Procedure Rules 2005 (NSW) – Court’s Discretion to Make Costs Orders Notwithstanding the General Rule – Civil Procedure Act 2005 (NSW) s 98(1) – Whether the Court Should Exercise that Discretion

Legislation Cited:

Civil Procedure Act 2005 (NSW) ss56, 57, 60, 98(1)

Uniform Civil Procedure Rules 2005 (NSW) r 42.1

Cases Cited:

Anglo‑Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [1951] 1 All ER 873

Hooker v Gilling (No 2) [2007] NSWCA 214

Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164

Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72

Texts Cited:

N/A

Category:

Costs

Parties:

Mr Geoffrey Lowe (First Plaintiff)
Mrs Mary Lowe (Second Plaintiff)
Mrs Shiu Sing Sze Tu (First Defendant)
Mr Shiu Sze Tu (Second Defendant)

Representation:

Counsel:
Ms M Castle (First & Second Plaintiffs)
Ms J McDonald (First & Second Defendants)

Solicitors:
HWL Ebsworth Lawyers (First & Second Plaintiffs)
CLS Legal (First & Second Defendants)

File Number(s):

2021/85346

Publication restriction:

N/A

Judgment (costs)

1. On 13 August 2021, the Court allowed the plaintiffs’ appeal and made orders setting aside the Certificates of Determination issued by the Cost Review Panel and the Cost Assessor. The matter has been remitted to the Review Panel to re‑determine the Review Application in accordance with law.

2. Directions were made for the parties to serve submissions with respect to the question of costs. The Court has now received submissions from each of the plaintiffs and the defendants. The costs issue was to be determined on the papers unless either party requested an oral hearing. Neither did.

3. The plaintiffs submit that the “usual” rule (UCPR 42.1) that costs should follow the event should be applied in this case. They submit that there is no reason for some other order to be made with respect to the whole or any part of the costs.

4. The plaintiffs submit that they were successful in obtaining the relief sought in the summons and there is no disentitling conduct or displacing circumstances which would otherwise mean they are not entitled to their costs.

5. The plaintiffs referred to Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164 at [24]‑[25] (per Kiefel CJ and Bell, Gageler, Keane and Nettle JJ). Their Honours there said:

1. It is well established that the power to award costs is a discretionary power, but that it is a power that must be exercised judicially, by reference only to considerations relevant to its exercise and upon facts connected with or leading up to the litigation. While the width of the discretion "cannot be narrowed…