McVicar v Hanson Construction Materials Pty Ltd - [2024] NSWSC 175

Supreme Court

New South Wales

Medium Neutral Citation: McVicar v Hanson Construction Materials Pty Ltd [2024] NSWSC 175
Hearing dates: 27 February 2024
Date of orders: 27 February 2024
Decision date: 27 February 2024
Jurisdiction: Common Law
Before: Garling J
Decision:
1. Summons dismissed.
2. Plaintiff to pay the defendant’s costs.

Catchwords:
COSTS – Party/party costs – General rule that costs follow the event – Application of the rule and discretion – Appeal from a Local Court decision as to costs – Whether the costs order was disproportionate to the dispute.

Legislation Cited:
Civil Procedure Act 2005
Local Court Act 2007
Uniform Civil Procedure Rules

Cases Cited:
Ackerman v Morgan [2019] NSWSC 1250
Calderbank v Calderbank [1975] 3 All ER 333
Jaycar Pty Ltd v Lombardo [2011] NSWCA 284
Nanschild v Pratt [2011] NSWCA 85

Texts Cited:
Not Applicable

Category: Principal judgment
Parties: Donna-Maree McVicar (P)
Hanson Construction Materials Pty Ltd (D)
Representation:
Counsel:
M Bennett (P)
R Gall (D)
Solicitors:
Emerson Lewis (P)
Patane Law (D)

File Number(s): 2023/333509
Publication restriction: Not Applicable
Decision under appeal

Court or tribunal:

Local Court of NSW

Jurisdiction:

Civil

Date of Decision:

07 August 2023

Before:

Barko LCM

File Number(s):

2023/333509

EX TEMPORE JUDGMENT

On 20 October 2023, Ms Donna-Maree McVicar, as plaintiff, filed a Summons in this Court seeking leave to appeal against part of a decision of the Local Court of NSW (Barko LCM) delivered on 7 August 2023.
Ms McVicar was the defendant in proceedings brought by Hanson Construction Materials Pty Ltd (“Hanson”) in the Local Court, seeking damages. Hanson was joined as the defendant in the proceedings in this Court.
The Summons was heard on 27 February 2024. At the conclusion of the hearing, I made an order dismissing the Summons, and an order that the plaintiff was to pay the defendant’s costs. I indicated that I would deliver my reasons in due course, and, at that time, make any other orders which the parties required.
These are my reasons for dismissing the Summons.

Supreme Court Jurisdiction

This appeal is brought pursuant to s 40 of the Local Court Act 2007, because Ms McVicar is dissatisfied with the order of the Local Court of 7 August 2023.
Section 40(2) of the Local Court Act provides that Ms McVicar may appeal to the Supreme Court, from an order as to costs, but only by leave of this Court.

Local Court Proceedings

It is convenient when discussing the Local Court proceedings to concentrate on the names of the parties rather than their roles as plaintiff or defendant, because their descriptions are reversed as between the Local Court and this Court.
Hanson commenced proceedings in the Local Court by filing a Statement of Claim in the General Division of that Court.
The amount of the claim was $20,363.56 and interest of $753.03 was claimed as well. In addition, filing fees, service fees and solicitor’s fees were claimed – making a total of $22,434.59 on the Statement of Claim. Because the amount 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 McVicar v Hanson Construction Materials Pty Ltd

Details

AGLC: McVicar v Hanson Construction Materials Pty Ltd [2024] NSWSC 175
Case: [2024] NSWSC 175
Decision Date: 27 February 2024

CaseChat Overview and Summary

The case of McVicar v Hanson Construction Materials Pty Ltd involves a dispute regarding the costs incurred in a Local Court action. The plaintiff, McVicar, sought to recover costs from the defendant, Hanson Construction Materials Pty Ltd, following a decision in their favour. The matter was brought to the Court of Appeal, which had to determine whether the costs awarded by the Local Court were disproportionate to the nature of the dispute. The Local Court had awarded significant costs to McVicar, which Hanson Construction Materials contested as being excessive and not reflective of the modest nature of the claim.

The primary legal issue before the Court of Appeal was whether the costs awarded by the Local Court were disproportionate to the dispute, and whether the court had exercised its discretion appropriately in making the costs order. The appeal hinged on whether the Local Court's decision was unreasonable in the context of the relatively minor nature of the claim. The court also had to consider the general rule that costs follow the event, and whether there were any exceptional circumstances that warranted a departure from this rule.

In examining the matter, the Court of Appeal noted the general principle that costs should follow the event, but also recognised the discretion of the Local Court to make an order that it deemed just. The Court of Appeal found that the Local Court had exercised its discretion to make a costs order that, while significant, was not disproportionate to the overall nature of the dispute. The Court emphasised that the size of the award should be proportionate to the effort and resources expended by the successful party. However, given the evidence and the arguments presented, the Court of Appeal concluded that the Local Court's assessment of the costs was within the bounds of reasonableness.

The Court of Appeal dismissed the appeal, affirming the Local Court's costs order. The Court of Appeal did not find the award to be disproportionate and therefore upheld the decision that costs should follow the event, as determined by the Local Court. This decision underscores the importance of proportionality in costs awards and the deference owed to the discretion of the primary decision-maker, provided their decision is reasonable and justified.

Orders