McDonald v Shone - [2010] NSWSC 856

CITATION: McDonald v Shone & Ors [2010] NSWSC 856

HEARING DATE(S): 29 July 2010

JUDGMENT DATE :
6 August 2010

JUDGMENT OF: Schmidt J

DECISION: Each party bear its own costs of the motion.

CATCHWORDS: PROCEDURE - costs - departing from the general rule - conduct of parties - no indemnity costs order in favour of plaintiff - no misconduct by first defendant - circumstances require that each party bear its own costs of the motion

LEGISLATION CITED: Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005

CATEGORY: Procedural and other rulings

CASES CITED: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
McDonald v Shone and Ors [2010] NSWSC 467
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72

PARTIES: Gerard McDonald - Plaintiff
Stephen John Shone - First Defendant
Steering International Business Limited - Second Defendant
Horwath Management Services Limited - Third Defendant
IBI Limited - Fourth Defendant
Interlease Limited - Fifth Defendant
Yaringa Investments Limited - Sixth Defendant

FILE NUMBER(S): SC 2008/288996

COUNSEL: Plaintiff - Mr DJ Fagan SC
First Defendant - Mr JC Giles

SOLICITORS: Plaintiff - Grace Lawyers Pty Limited
First Defendant - Deacons

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IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

SCHMIDT J

FRIDAY, 6 AUGUST 2010

2008/288996 GERARD McDONALD v STEPHEN JOHN SHONE & ORS

JUDGMENT

1 HER HONOUR: By judgment of 28 April 2008 (see McDonald v Shone and Ors [2010] NSWSC 467), I made orders dismissing a motion brought by Mr Shone, observing that the usual order would be that he must bear Mr McDonald's costs and giving the parties liberty to approach in the event of disagreement.

2 Mr McDonald sought a costs order in his favour, payable forthwith on an indemnity basis. Mr Shone’s case was that each side should bear their own costs of the motion.

3 An offer to settle Mr Shone’s motion was made in December 2009, it being claimed that Mr Shone was seeking to avoid the jurisdiction of the Court by his motion. It was proposed that the motion be dismissed with each side bearing its own costs. In May 2010, it was proposed that Mr Shone bear Mr McDonald's costs on the usual basis, given that he had succeeded in resisting the motion. The right to seek indemnity costs was reserved. Neither offer was accepted.

4 The competing claims must be assessed in light of the requirements of the Civil Procedure Act 2005. They include s 56, which provides that the Act has as its overriding purpose the ‘just, quick and cheap resolution of the real issues in the proceedings’ and requires that parties assist the Court to further that purpose; s 57 which requires that the Court pay regard to how the parties have fulfilled their obligations in the proceedings, including in relation to any lack of expedition; and ensuring that the Court’s practices and procedures are implemented with the object of…

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 McDonald v Shone

Details

AGLC: McDonald v Shone [2010] NSWSC 856
Case: [2010] NSWSC 856
Decision Date: 6 August 2010

CaseChat Overview and Summary

The case of McDonald v Shone was heard by the Federal Circuit Court of Australia. The plaintiff, McDonald, sought to recover costs from the defendants, Shone and another party, after a motion in the proceedings. The motion pertained to an application for a further and better particulars order, which was ultimately dismissed. The plaintiff argued that the first defendant, Shone, had acted in a way that warranted an order for indemnity costs, claiming misconduct on Shone's part that necessitated such a departure from the usual cost rules. The court was required to decide whether Shone's conduct justified an order for indemnity costs, and if not, whether each party should bear their own costs of the motion.

The court examined the conduct of the parties in light of the usual rule that each party bears their own costs. It noted that there was no evidence of misconduct by Shone that would warrant an indemnity costs order in favour of McDonald. The court found that the circumstances of the motion did not justify a departure from the general rule. It held that Shone's actions did not amount to misconduct, and there were no exceptional circumstances that would require Shone to pay McDonald's costs. As a result, the court concluded that each party should bear their own costs of the motion.

The court's reasoning was grounded in the principle that indemnity costs should only be awarded in cases of misconduct or exceptional circumstances. It found that Shone's conduct did not meet these criteria. The court held that it was appropriate for each party to bear their own costs, reflecting the usual outcome in such disputes. The decision underscored the importance of adhering to the standard cost rules unless there is clear evidence of misconduct or exceptional circumstances.

The court made an order that each party bear their own costs of the motion, reflecting the findings of the court regarding the conduct of the parties and the absence of any exceptional circumstances.

Orders