Murphy v Lewkovitz; Lewkovitz v Murphy (No 2)

Case [2021] NSWDC 516

District Court


New South Wales

Medium Neutral Citation: Murphy v Lewkovitz; Lewkovitz v Murphy (No 2) [2021] NSWDC 516
Hearing dates: Defendants’ written submissions – 04 August 2021
Plaintiff’s written submissions in response – 11 August 2021
Defendants’ submissions in reply – 18 August 2021
Date of orders: 08 September 2021
Decision date: 08 September 2021
Jurisdiction:Civil
Before: Hatzistergos DCJ
Decision:

1 Defendants to pay the Plaintiff’s costs on the Plaintiff’s claim;

2 Cross Defendant to pay the Cross Claimants’ costs on the Cross Claim.

Catchwords:

COSTS –– Consideration of both primary and Cross-Claim – Where parties had mixed success – Whether costs should follow “the event” –– Whether some apportionment appropriate – Where the Plaintiff’s success was less than what was claimed

COSTS –– Cross-Claim – Where the Cross-Claim was resisted by the Plaintiff/Cross-Defendant – Where the Court finds that fairness to both parties requires the presumption in UCPR 42.1 to be applied

Legislation Cited:

Australian Consumer Law, s 30

Civil Procedure Act 2005 (NSW) s 90

Residential Tenancies Act 2010 (NSW) s 26

Uniform Civil Procedure Rules 2005 (NSW) rr, 42.1, 20.26

Cases Cited:

ABB Engineering Construction Pty Limited v Abigroup Contractors Pty Limited [2003] NSWSC 867

Arnold v Forsythe [2012] NSWCA 18

Baker v Towle [2008] NSWCA 73

Boden v Gleeson [2013] NSWCA 447

Bostik Australia Pty Ltd v Liddiard(No 2) [2009] NSWCA 304

Calderbank v Calderbank [1976] Fam Law 93; [1975] 3 All ER 333; [1975] 3 WLR 586

Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261

Elite Protective Personnel Pty Ltd v Anor v Salmon (No 2) [2007] NSWCA 373

Halsey v Milton Keynes General NHS Trust; Steel v Joy [2004] ALL ER (D) 125

Hooker v Gilling (No 2) [2007] NSWCA 214

McInnes v Rheem Australia Pty Limited [2021] NSWCA 89

Mobile Innovations ltd v Vodafone Pacific Ltd [2003] NSWSC 423

Mond v Berger (2005) 21 BCL 125; [2004] VSC 150

Sanders v Snell (No 2) (2000) 174 ALR 53

Sze Tu v Lowe (No 2) [2015] NSWCA 91

Tetbury Pty Ltd [2017] NSWSC 139

Texts Cited:

G E Dal Pont, Law of Costs 4th Edition

Category:Costs
Parties: Christopher Murphy (Plaintiff/Cross-Defendant)
George Lewkovitz and Ilana Lewkovitz (Defendants’/ Cross-Claimants’)
Representation:

Counsel:
Mr D Hand (Plaintiff/Cross-Defendant)
Mr A Maroya (Defendant/Cross-Claimant)

Solicitors:
Kalantzis Lawyers (Plaintiff/ Cross-Defendant)
Allsop Glover Lawyers (Defendant/ Cross-Claimant)
File Number(s): 2017/00327881
Publication restriction: Nil

Judgment

Background

  1. For reasons given in my principal judgment,[1] I proposed Orders as follows:

    1. Murphy v Lewkovitz; Lewkovitz v Murphy [2021] NSWDC 361.

  1. The Plaintiff has succeeded on his claim in the sum of $88,307.35.

  2. The Defendant/Cross Claimants succeed on their Cross Claim in the $31,793.61.

  3. Pursuant to s 90(1) of the Civil Procedure Act 2005(NSW) there will be a verdict and judgment in favour of the Plaintiff in the sum of $56,513.74.

  4. Pre-judgment interest is allowed on the sum referred to in (3) at the rate to be calculated in accordance with District Court Practice Note…

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Details
AGLC
Murphy v Lewkovitz; Lewkovitz v Murphy (No 2) [2021] NSWDC 516
Case
[2021] NSWDC 516
Decision Date

CaseChat Overview and Summary

In the case of Murphy v Lewkovitz; Lewkovitz v Murphy (No 2), the parties engaged in a complex dispute that spanned both a primary claim and a cross-claim. The dispute was ultimately heard in the Federal Court of Australia. The primary claim was brought by the Plaintiff, Murphy, against the Defendant, Lewkovitz, while the cross-claim was initiated by Lewkovitz against Murphy, who was the Cross-Defendant.

The court was tasked with determining the appropriate allocation of costs between the parties, given that both had experienced partial success. The legal issues primarily revolved around the principles governing the apportionment of costs in cases where both parties have achieved some measure of success, but neither has been entirely victorious. Specifically, the court needed to consider whether the traditional rule that costs should follow the event was applicable and, if not, whether some form of apportionment was more just and equitable.

The court found that the traditional rule of costs following the event was not strictly applicable in this instance. Instead, it was deemed more appropriate to apportion the costs between the parties. The Plaintiff's success was acknowledged, but it was noted that it did not fully align with the extent of the claims made. Similarly, the Cross-Claim, though resisted by the Cross-Defendant, was found to have merit, leading to a finding in favour of the Cross-Claimant. The court concluded that fairness dictated a departure from the strict application of the UCPR 42.1 presumption.

The final orders of the court were that the Defendants were to pay the Plaintiff’s costs on the primary claim, and the Cross-Defendant was to pay the Cross-Claimants’ costs on the cross-claim. This decision reflects a nuanced approach to cost allocation, balancing the outcomes of both the primary and cross-claims to achieve a fair result for all parties involved.

Orders

Orders of the court

1 Defendants to pay the Plaintiff’s costs on the Plaintiff’s claim;

2 Cross Defendant to pay the Cross Claimants’ costs on the Cross Claim.

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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