McLaughlin Building Services Pty Limited v Spratt

[2000] NSWSC 532

CITATION:	McLaughlin Building Services Pty Limited v Spratt & Ors [2000] NSWSC 532
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 12994/99
HEARING DATE(S):	Wednesday 14 June 2000
JUDGMENT DATE:	14 June 2000
PARTIES :	McLaughlin Building Services Pty Limited v Ronald Spratt, Sabrina Faust, Alice Bradstreet, Lorraine Banister and Graham Banister
JUDGMENT OF:	Michael Grove J at 1

COUNSEL :	J. Cameron, Solicitor for Plaintiff P. O'Hearn, Solicitor for 3,4,5 Defendants
SOLICITORS:	The Builders' Lawyer O'Hearn & Bilinsky
CATCHWORDS:	Reference by Registrar - Costs
DECISION:	Orders Made

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MICHAEL GROVE J

Wednesday 14 June 2000

12994/99 - McLAUGHLIN BUILDING SERVICES PTY LIMITED v RONALD SPRATT & ORS

JUDGMENT

1    HIS HONOUR: There is presently before the Court a reference from a Deputy Registrar. I am asked to exercise the jurisdiction of the Court in relation to two issues of costs.

2    The first issue is focussed upon a summons issued by the plaintiff, McLaughlin Building Services Pty Ltd, on 10 December 1999. That summons was issued in relation to the seeking of orders extending time in which appeals might be lodged concerning decisions of the Fair Trading Tribunal. It is unnecessary for present purposes to explore the background or reasons for the issue of that summons.

3    On 5 June instant the plaintiff filed a motion seeking orders that the summons, to which I have made reference, be withdrawn without costs and a second order that what is described as the matter be struck out with costs for the plaintiff in relation to the motion.

4    I have with the assistance of Mr O'Hearn, Solicitor for the third, fourth and fifth defendants, and Mr Cameron, Solicitor for the plaintiff, discussed the issues which arise and I do not propose to re-trace all the matters discussed in exchange with them.

5    It suffices in my view to record the following: The summons originally issued in December 1999 is failing in the sense that it has by consent been dismissed. I see no reason for a special order for costs and in accordance with the practices of the Court the costs of the summons should follow the event.

6    Insofar as the motion is brought, it is true that it might be said that a reasonable response by the defendants to that motion would be to consent to the dismissal of the principal proceedings. However, questions of costs were raised, some elements having to do with outstanding costs on matters actually in dispute between the parties.

7    As is self-evident the plaintiff is succeeding on that part of the prayer in the motion as seeks his summons be withdrawn. However, he is not succeeding in having the summons dismissed without costs.

8    There being elements of both success and failure to the motion it seems to me that the justice of the situation will be met by there being specifically no order for costs of the motion.

9    Accordingly, I make the following orders:
On the summons filed on 10 December 1999, dismissed by consent before the Deputy Registrar this morning, I order the plaintiff to pay the defendants' costs of the summons.

10    On the notice of motion filed on 5 June 2000 I note the orders already made before the Deputy Registrar. I specifically order there be no order as to costs of any party to that motion.
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Last Modified: 09/26/2000