Nolan v Otis Elevator Company Pty Limited

[2008] NSWCA 196

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Nolan v Otis Elevator Company Pty Limited [2008] NSWCA 196

FILE NUMBER(S):
40785/07

HEARING DATE(S):
11 August 2008

EX TEMPORE DATE:
11 August 2008

PARTIES:
John Nolan (Applicant)
Otis Elevator Company Pty Limited (Respondent)

JUDGMENT OF:
Allsop P Bell JA Handley AJA   

LOWER COURT JURISDICTION:
Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S):
SC 2832/07

LOWER COURT JUDICIAL OFFICER:
Windeyer J

LOWER COURT DATE OF DECISION:
16 October 2007

COUNSEL:
G O Blake SC (Applicant)
A F Moses/Y Shariff (Respondent)

SOLICITORS:
Toomey Pegg Drevikovsky (Applicant)
Mallesons Stephen Jaques (Respondent)

CATCHWORDS:
COSTS - leave to appeal - burden on claimant - no question of principle

LEGISLATION CITED:
Supreme Court Act 1970

CATEGORY:
Principal judgment

CASES CITED:

TEXTS CITED:

DECISION:
Application for leave to appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40785/07
SC 2832/07

ALLSOP P
BELL JA
HANDLEY AJA

MONDAY 11 AUGUST 2008

JOHN NOLAN v OTIS ELEVATOR COMPANY PTY LIMITED

Judgment

1. ALLSOP P:  I will ask Justice Handley to deliver the first judgment.

2. HANDLEY AJA :  This is an application for leave to appeal from a costs order made by Windeyer J when granting leave to a plaintiff to discontinue proceedings in the Equity Division.  The opponent, the plaintiff below, failed to obtain an interlocutory injunction from Brereton J to restrain the claimant from committing a breach of a restraint of trade clause in his employment contract.

3. Brereton J made an order that the defendant’s costs of the motion be his costs in the cause.  The restraint was only for six months and the refusal of the interlocutory injunction deprived the proceedings of any further useful purpose.  In due course, the plaintiff filed an application for leave to discontinue which enlivened the court’s power under the rules to deal with the costs of the proceedings.

1. The application came before Windeyer J in the duty list and following argument his Honour ordered that the plaintiff pay 80% of the costs of the motion before Brereton J and that otherwise there should be no order as to costs. The defendant seeks leave to appeal from that order. Leave is required by s 101(2)(c) of the Supreme Court Act, and a claimant seeking to disturb a discretionary order as to costs bears a heavy onus in this Court.

1. There is a risk that the costs of an application to this Court to review a costs order will be disproportionate to the amount of costs originally in dispute and that may be the situation in this case.  Windeyer J put to both counsel the general structure of the costs order he had in mind.  This was that the defendant receive his costs of the motion for the interlocutory injunction but that otherwise there should be no order as to costs.  Counsel for the claimant accepted his Honour’s proposed order and did not further address on it.  Counsel for the present opponent did not accept that order and submitted further argument.

1. His Honour rejected a number of those arguments but accepted one, namely that the plaintiff had achieved some benefit from the interlocutory application because he obtained another undertaking in addition to those that had already been proffered.  His Honour was also impressed by the submission that the defendant had removed handwritten notes from the plaintiff’s premises and this had naturally excited its suspicions and to this extent it had asked reasonably in bringing the application for an interlocutory injunction.

1. I am not persuaded that either of the matters in question raise an issue of principle which warrants the intervention of this court.  There is always an element of rough justice in an order for costs in situations like this. The judge must wield a broad axe rather than a surgeon’s scalpel. In the circumstances I have not been persuaded, as I have said, that there was any error of principle which justifies the intervention of this court.

   Accordingly I propose that the motion be dismissed with costs.

1. ALLSOP P:  I would agree and would only add the following comment, that in relation to a broad discretionary judgment such as costs, the approach of parties to the disposition of the matter is important in understanding the framework in which the discretion maker or the judge exercising the power works.  Here a framework was laid down, by the primary judge.  In my view it is simply not open to be said that by adopting that framework, which was not opposed by counsel for the plaintiff that his Honour in any way exercised the power in a way that betrayed error.  I otherwise agree with Justice Handley’s reasons and with the proposed orders.

1. BELL JA:  I agree with the orders proposed by Handley AJA for the reasons that his Honour has given and with the additional remarks of the President.

1. ALLSOP P:  The orders of the court are the application for leave to appeal be dismissed with costs.

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LAST UPDATED:
26 August 2008