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
Texts Cited: Not Applicable
Category: Principal judgment Parties: Donna-Maree McVicar (P)
Hanson Construction Materials Pty Ltd (D)Representation: Counsel:
Solicitors:
M Bennett (P)
R Gall (D)
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
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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.
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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.
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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.
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These are my reasons for dismissing the Summons.
Supreme Court Jurisdiction
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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.
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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
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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.
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Hanson commenced proceedings in the Local Court by filing a Statement of Claim in the General Division of that Court.
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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…
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- AGLC
- McVicar v Hanson Construction Materials Pty Ltd [2024] NSWSC 175
- Case
- [2024] NSWSC 175
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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