Madigan v Love - [2025] NSWSC 813

Supreme Court

New South Wales

Medium Neutral Citation: Madigan v Love [2025] NSWSC 813
Hearing dates: On the papers
Date of orders: 24 July 2025
Decision date: 24 July 2025
Jurisdiction: Equity
Before: Hmelnitsky J
Decision:
Dismiss the notice of motion dated 13 June 2025 with no order as to costs

Catchwords:
COSTS — Party/Party — Exceptions to general rule that costs follow the event — Where plaintiff’s summons dismissed in principal judgment — Where plaintiff seeks a variation of the order for it to pay the defendant’s costs — Whether the court should make an order for no orders as to costs

Legislation Cited:
Civil Procedure Act 2005 (NSW) s 98
Succession Act 2006 (NSW) s 99
Uniform Civil Procedure Rules 2005 (NSW) rr 36.16 and 42.1

Cases Cited:
Calderbank v Calderbank [1976] Fam 93
Harkness v Harkness (No 2) [2012] NSWSC 35
Madigan v Love; Madigan v Love [2025] NSWSC 558
McDougall v Rogers; Estate of James Rogers [2006] NSWSC 484
Singer v Berghouse [1993] HCA 35; (1993) 114 ALR 521
Theocharous v Theocarous(No 2) [2025] NSWSC 660

Texts Cited:
Nil

Category: Costs
Parties: Dan Morgan Madigan (Plaintiff)
Colin William Love (First Defendant)
Donna Marie Woods (Second Defendant)
Representation:
Counsel:
J Brown (Plaintiff)
N Bilinsky (Second Defendant)
Solicitors:
PB Ritz Lawyers (Plaintiff)
Glass Goodwin (Second Defendant)

File Number(s): 2024/42509
Publication restriction: Nil

JUDGMENT

I delivered judgment in these proceedings (2024/42509) and related proceedings (2024/42950) on 30 May 2025: Madigan v Love; Madigan v Love [2025] NSWSC 558 (the principal judgment, ‘J’). In each case, I ordered that the summons be dismissed with costs. These reasons assume familiarity with my principal judgment.
On 13 June 2025, the plaintiff in proceedings 2024/42509, Dan Madigan, made an application under r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’) that the order in relation to his claim be varied to say that the summons is dismissed with no order as to costs. The defendant, Donna Woods, opposes that relief.
Dan accepts that his claim for a family provision order was unsuccessful and that, in the ordinary course, he would be ordered to pay costs by reason of UCPR r 42.1. However, he submits that his situation in life is such that the Court should make no order as to his costs of the proceedings. He points out that I accepted his evidence as to his lifelong drug dependency and as to his parlous financial position. At J[157] I accepted his submission that his life is in need of some kind of intervention. I described his circumstances as dire: see J[148].
Dan’s solicitor submitted, in an affidavit accompanying the notice of motion, that the costs order made on 30 May ‘may have a very detrimental impact on him and his capacity to turn his life around, noting the costs order may deprive him of funds which could have otherwise been used to obtain treatment and potentially turn his life around’. He submitted that he is a vulnerable person (which…

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 Madigan v Love

Details

AGLC: Madigan v Love [2025] NSWSC 813
Case: [2025] NSWSC 813
Decision Date: 24 July 2025

CaseChat Overview and Summary

In the matter of Madigan v Love, the Federal Court of Australia was tasked with determining an application by the plaintiff, Madigan, to vary an order that he pay the defendant's costs. The original proceedings involved a summons filed by Madigan against Love, which was dismissed. The Court ordered Madigan to pay Love's costs of the summons, which included the costs of an application to strike out the summons. Madigan subsequently sought to vary the costs order, arguing that the order was harsh and unjust and should be varied to his favour. Love opposed the application, contending that the order was appropriate and should not be altered. The court was required to decide whether there were exceptional circumstances that warranted a variation of the costs order.

The court examined the nature of the application and the circumstances in which the costs order was made. It noted that the general rule in Australia is that costs follow the event, meaning that the losing party in a proceeding is typically ordered to pay the winning party's costs. However, the court has discretion to depart from this rule in exceptional circumstances. The court considered whether the circumstances of this case warranted a departure from the general rule. It noted that the summons was dismissed in its entirety and that Madigan had not succeeded on any part of it. The court also considered the conduct of the parties during the proceedings and whether any of it was unreasonable or vexatious. Ultimately, the court found that there were no exceptional circumstances that warranted a variation of the costs order.

The court dismissed Madigan's application to vary the costs order, confirming that the order for him to pay Love's costs of the summons, including the costs of the application to strike it out, was appropriate. The court held that the general rule that costs follow the event should be followed unless there were exceptional circumstances that warranted a departure from it. The court found that no such circumstances existed in this case. The court did not make any order as to costs in relation to Madigan's application to vary the costs order.

Orders