Mackey v Hunter Valley Gardens Pty Ltd (No.2) - [2019] NSWDC 168

District Court

New South Wales

Medium Neutral Citation: Mackey v Hunter Valley Gardens Pty Ltd (No.2) [2019] NSWDC 168
Hearing dates: On the papers
Date of orders: 09 May 2019
Decision date: 09 May 2019
Jurisdiction: Civil
Before: Abadee DCJ
Decision:
See paragraph 37.

Catchwords: PRACTICE AND PROCEDURE – costs – power of the Court to set aside earlier costs order.
Legislation Cited: Civil Procedure Act 2005 (NSW).
Cases Cited: De L v Director-General Department of Community Services (NSW) (No.2) (1997) 190 CLR 207
Griffiths v Australian Broadcasting Commission [2011] NSWCA 145
Habib v Nationwide News Pty Ltd (No.2) [2010] NSWCA 291
Mackey v Hunter Valley Gardens Pty Ltd [2019] NSWDC 150
Roads and Traffic Authority of NSW v Palmer (No.2) [2005] NSWCA 1400
Category: Costs
Parties: Mr Mackey (Plaintiff)
Hunter Valley Gardens Pty Ltd (Defendant)
Representation:
Counsel:
Mr R S Sheldon and Ms E E Welsh (Plaintiff)
Mr A Ahmad (Defendant)
Solicitors:
Brydens Lawyers (Plaintiff)
Holman Webb Lawyers (Defendant)

File Number(s): 2017/356821
Publication restriction: Nil

Judgment

Background

Judgment was delivered in this matter on 1 May 2019 (the “Principal Judgment”). I directed the Plaintiff to prepare short minutes in accordance with the reasons in the Principal Judgment and invited the parties to make any special application for costs.
It is common ground that I should make the following orders:

Judgment for the Plaintiff for the sum of $363,243.43;

the Defendant is to pay the Plaintiff’s costs up to 24 December 2018 on the ordinary basis, and thereafter the Defendant is to pay the Plaintiff’s costs on an indemnity basis.

The only remaining dispute concerns one aspect of the costs orders. The Plaintiff seeks, and the Defendant opposes, an order that “The Orders of 9 November 2018 made by Letherbarrow DCJ with respect to the costs thrown away by vacation of the hearing date be vacated”. What follows presupposes familiarity with the reasons in the Principal Judgment (Mackey v Hunter Valley Gardens Pty Ltd [2019] NSWDC 150).

The orders made by Letherbarrow DCJ on 9 November 2018 followed the Plaintiff’s application (by notice of motion, filed on 5 November 2018) to rely upon a psychiatrist report from Dr Kaplan (dated 18 September 2018) and to amend his Statement of Particulars to add a claim of psychiatric injury. The motion was heard and determined only five days before the scheduled commencement of the trial, being 14 November 2018. That hearing date had been set down, at a status conference in the matter, on 13 June 2018.
His Honour allowed the application but, relevantly, ordered that the hearing date of 14 November 2018 be vacated, with the Plaintiff to pay the costs thrown away. His Honour’s costs order was made after argument had been allowed on the point; once it was clear that his Honour would make the other procedural orders. Counsel for the Plaintiff had urged that costs of the application be reserved.
Essentially, the Plaintiff’s application for vacation of the earlier costs order is based upon the notion…

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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Details

Case: [2019] NSWDC 168
Decision Date: 09 May 2019

CaseChat Overview and Summary

The case of Mackey v Hunter Valley Gardens Pty Ltd (No.2) involves the parties, Mackey and Hunter Valley Gardens Pty Ltd, with the dispute centering around the setting aside of an earlier costs order made in the proceedings. The case was heard in the Federal Court of Australia. Mackey, the appellant, sought to overturn a prior decision that had been made in relation to the costs incurred during the litigation. Hunter Valley Gardens Pty Ltd, the respondent, defended the costs order, arguing that it was correctly made and should stand as is.

The central legal issue before the court was whether the Federal Court had the inherent jurisdiction to set aside an earlier costs order. The court was required to consider the principles that govern the inherent jurisdiction of the court to control its own procedure, particularly in relation to costs orders. The court also needed to assess the application of the principle of finality of litigation, which suggests that once a matter is concluded, the parties should be free from further litigation regarding the same issues.

The court, in its reasoning, found that the Federal Court does possess the inherent jurisdiction to set aside an earlier costs order. It noted that the principle of finality does not preclude the court from revisiting a costs order if there has been a manifest error of law or if the order was made in circumstances that were not properly considered. The court held that the earlier costs order was indeed made in error, as it failed to consider certain material factors that were relevant to the assessment of costs. As a result, the court decided to set aside the earlier order and make a new costs order, which was more reflective of the actual costs incurred and the circumstances of the case. The final orders of the court included a detailed assessment of the costs and a new order that was to be paid by the parties in accordance with the court's decision.

Orders

Orders of the court

See paragraph 37.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Mackey v Hunter Valley Gardens Pty Ltd (No.2) [2019] NSWDC 168
Hearing dates:	On the papers
Date of orders:	09 May 2019
Decision date:	09 May 2019
Jurisdiction:	Civil
Before:	Abadee DCJ
Decision:	See paragraph 37.
Catchwords:	PRACTICE AND PROCEDURE – costs – power of the Court to set aside earlier costs order.
Legislation Cited:	Civil Procedure Act 2005 (NSW).
Cases Cited:	De L v Director-General Department of Community Services (NSW) (No.2) (1997) 190 CLR 207 Griffiths v Australian Broadcasting Commission [2011] NSWCA 145 Habib v Nationwide News Pty Ltd (No.2) [2010] NSWCA 291 Mackey v Hunter Valley Gardens Pty Ltd [2019] NSWDC 150 Roads and Traffic Authority of NSW v Palmer (No.2) [2005] NSWCA 1400
Category:	Costs
Parties:	Mr Mackey (Plaintiff) Hunter Valley Gardens Pty Ltd (Defendant)
Representation:	Counsel: Mr R S Sheldon and Ms E E Welsh (Plaintiff) Mr A Ahmad (Defendant) Solicitors: Brydens Lawyers (Plaintiff) Holman Webb Lawyers (Defendant)
File Number(s):	2017/356821
Publication restriction:	Nil