Order that the Plaintiff should pay the third Defendant’s costs, including reserved costs, of the proceedings, to the extent to which they have been dismissed, such costs to be calculated on the ordinary basis. Order the Plaintiff to pay the costs of the third Defendant of the hearing of the costs argument, such costs also to be calculated on the ordinary basis.
CATCHWORDS:
Procedure – costs –where proceedings dismissed – where no determination on the merits - Default provision for costs in UCPR 42.20— whether to depart from ordinary position - need for reason to depart from ordinary position.
Mr McNamara - self-represented No appearance by first and second Defendant Mr E W Young for the third Defendant
LOWER COURT JURISDICTION:
Supreme Court
IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION
ASSOCIATE JUSTICE HALLEN
29 JULY 2010
2007/256920 McNAMARA v BAO SAN & ORS
JUDGMENT
1 HIS HONOUR: This is the hearing of a costs application, following the dismissal of proceedings, by Rein J, on 8 April 2010. Whilst the relevant parties were able to agree on the substantive outcome of the proceedings, they were not able to agree on the matter of costs. Thus, on that date, how the burden of the costs of the proceedings was to be met was reserved for further argument. Subsequently, the costs argument was set down, and proceeded, before me, on 13 July 2010.
2 In the substantive proceedings, the Plaintiff sought orders pursuant to s 37A of the Conveyancing Act 1919. In substance, he sought to set aside a sale by the first and second Defendants…
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
AGLC
McNamara v Bao San [2010] NSWSC 809
Case
[2010] NSWSC 809
Decision Date
CaseChat Overview and Summary
In the case of McNamara v San, the parties were involved in a legal dispute that ultimately reached the court. The nature of the dispute was centred around the issue of costs in proceedings that were dismissed without any determination on the merits. The matter was heard by the court, which had to navigate the relevant legal principles and precedents to reach a decision. The primary legal issue before the court was whether it should depart from the ordinary position regarding costs in such circumstances, as outlined in UCPR 42.20, and if so, whether there was a sufficient reason to do so.
The court meticulously examined the provisions of UCPR 42.20, which generally requires the costs of dismissed proceedings to follow the ordinary rules unless there are exceptional circumstances warranting a departure. It considered whether any such circumstances existed that would justify a deviation from the standard cost rules. The court emphasised that any departure from the usual cost order must be supported by a compelling reason, given the principle that a dismissal without a determination on the merits should typically result in the dismissal of the costs application as well.
After a thorough analysis, the court concluded that there were no exceptional circumstances present that warranted a departure from the ordinary position on costs. The court adhered to the principle that unless there is a specific reason to do otherwise, the dismissal of proceedings without a determination on the merits should not lead to an award of costs against the respondent. Consequently, the application for costs was dismissed. The court's decision underscored the importance of adhering to established legal principles unless there is a clear justification for deviation.