Morris v Hanley - [2004] NSWSC 62

CITATION: Morris v Hanley [2004] NSWSC 62

HEARING DATE(S): 28 April, 1 May, 5 & 12 June and 17 December 2003, 5 & 6 February 2004

JUDGMENT DATE:
17 February 2004

JURISDICTION:
Equity

JUDGMENT OF: Hamilton J

DECISION: Defendants awarded costs of proceedings generally.

CATCHWORDS: PROCEDURE [583] - Costs - Departing from general rule - Conduct of parties - Misconduct etc - Generally - Application to deprive successful defendants of costs - Misconduct by defendants in subject transactions and in conduct of proceedings.

CASES CITED: Morris v Hanley [2003] NSWSC 42
Ritter v Godfrey [1920] 2 KB 47
Sunday Times Newspaper Co Ltd v McIntosh (1933) 33 SR (NSW) 371
Zelino v Budai [2001] NSWSC 501

PARTIES :
Janine Morris (P)
Jack Norman Hanley (D1)
Geoffrey Donald Reid (D2)
Lynda Maree Cole (D3)
Christine Valmae Hayward (D4)
Anthony Bodycote (D5)
Robyn Janelle Haydon (D6)
Daphne Olive Boyd (D7)
Beverley Joy Armfield (D8)
Gayle Hanley (D9)
Cecil Bellchambers (D10)
Mariani Holdings Pty Limited (D11)

FILE NUMBER(S): SC 2650/97

COUNSEL: In person (P)
P T Taylor then P F Walsh, Solicitor (Ds)

SOLICITORS: In person (P)
Parker & Kissane (Ds)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

TUESDAY, 17 FEBRUARY 2004

2650/97 JANINE MORRIS v JACK NORMAN HANLEY & ORS

JUDGMENT

1 HIS HONOUR: In these proceedings the plaintiff brought claims against 11 defendants for breach of fiduciary duty, conspiracy and negligence. She was completely unsuccessful. There was judgment for the defendants generally: Morris v Hanley [2003] NSWSC 42 (“my judgment”). This would normally result in her being ordered to pay the defendants’ costs of the proceedings. But she claims a special order for costs, either to the effect that there be no order as to costs or alternatively that the defendants be ordered to pay her costs of the proceedings. She has prepared a schedule of particulars of the matters that she relies on in support of this argument and also written submissions in support of it.

2 She correctly identified the relevant principles on which this discretion is exercised as those set out in Ritter v Godfrey [1920] 2 KB 47 where Atkin LJ said at 60:

“In the case of a wholly successful defendant, in my opinion the Judge must give the defendant his costs unless there is evidence that the defendant (1) brought about the litigation, or (2) has done something connected with the institution or the conduct of the suit calculated to occasion unnecessary litigation or expense, or (3) has done some wrongful act in the course of the transaction of which the plaintiff complains.”

"... extends to cases where the facts complained of, though they do not give the plaintiff a cause of action, disclose a wrong to the public."

3 These principles were adopted as applicable in New South Wales by Long Innes J in Sunday Times Newspaper Co Ltd v McIntosh (1933) 33 SR (NSW) 371…

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 Morris v Hanley

Details

AGLC: Morris v Hanley [2004] NSWSC 62
Case: [2004] NSWSC 62
Decision Date: 17 February 2004

CaseChat Overview and Summary

In the case of Morris v Hanley, the plaintiff, Morris, brought an action against the defendants, Hanley and others, to recover costs incurred in legal proceedings that were initially instituted by Hanley against Morris. The dispute centred around the conduct of the parties, particularly the defendants' conduct in the subject transactions and during the proceedings, which Morris argued warranted a departure from the general rule on costs. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the defendants' conduct warranted a departure from the general rule that the costs of litigation are to be borne by the unsuccessful party. Specifically, the court needed to determine if the defendants' misconduct during the subject transactions and in the conduct of the proceedings justified depriving them of their costs despite being successful defendants. This involved examining the nature and extent of the defendants' misconduct to assess if it was significant enough to warrant such a departure from the usual costs order.

The court found that the defendants' conduct did indeed constitute misconduct that warranted a departure from the general rule on costs. The misconduct included not only actions during the transactions in question but also behaviour during the legal proceedings. The court noted that the defendants' actions were deliberate and had a significant impact on the proceedings, leading to unnecessary expense and delay. As a result, the court ordered that the defendants were to bear their own costs, despite being the successful party in the litigation. This decision underscored the importance of conduct in litigation and its potential consequences for the allocation of costs.

Orders