O.R. Smee Pty Ltd (in liquidation) v Calkin (Costs)

[2024] NSWSC 573

Supreme Court

New South Wales

Medium Neutral Citation:

O.R. Smee Pty Ltd (in liquidation) v Calkin (Costs) [2024] NSWSC 573

Hearing dates:

On the papers

Date of orders:

16 May 2024

Decision date:

16 May 2024

Jurisdiction:

Common Law

Before:

Schmidt AJ

Decision:

Order that Mr Calkin pay the company’s costs of these proceedings, as agreed or assessed.

Catchwords:

COSTS – whether usual costs order under UCPR r 42.1 should be made – where defendant effectively surrendered to the plaintiff after litigating for some time – usual order made

Legislation Cited:

Civil Procedure Act2005 (NSW), s 98

Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Cases Cited:

Chapman v LuminisPty Ltd [2003] FCAFC 162

O.R. Smee Pty Ltd (in liquidation) v Calkin [2023] NSWSC 1306

Re Minister for Immigration & EthnicAffairs; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6

Category:

Costs

Parties:

O.R. Smee Pty Ltd (in liquidation) (Plaintiff)
Daryl Calkin (Defendant)

Representation:

Counsel:
N Kabilafkas (Plaintiff)

Solicitors:
J Biady & Associates Pty Ltd (Plaintiff)

File Number(s):

2023/217672

Publication restriction:

Nil

JUDGMENT

1. In O.R. Smee Pty Ltd (in liquidation) v Calkin [2023] NSWSC 1306, I gave judgment for the company, the parties having finally agreed on the appropriate orders to be made. They included a declaration that Mr Calkin had no present right to enter, occupy, or remain upon the land the subject of the proceedings, where he had stored extensive property. It being only at the final hearing that he agreed to vacate the property, having no right to remain in occupation.

2. It was the company, its liquidators acting to perform their statutory duties, which successfully pursued the orders finally agreed, for the benefit of its creditors. It now seeks an order for costs, even though the Court’s orders were made by consent. It relies on affidavits sworn on 7 July and 29 September 2023 by Mr Parker, one of its liquidators, to support that application.

3. Mr Calkin has not advanced any submissions to resist the orders sought.

4. They are undoubtedly within the Court’s power to make: s 98 of the Civil Procedure Act2005 (NSW). The usual order under r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) being that costs follow the event.

5. The consent orders earlier made reflected Mr Calkin’s acceptance that the company was entitled to the relief it sought, despite his earlier resistance. That removed the necessity for the Court resolving that and other issues on the merits. Mr Parker’s affidavit establishes why the pursuit of these proceedings was necessary, given Mr Calkin’s ongoing refusal, beforehand, to vacate the property, despite having no permission to store his belongings there.

6. After the agreed orders were made, the parties cooperated further, so that Mr Calkin had the time which he ended up needing, to remove all of his property from the land. That undoubtedly added to the costs of these proceedings, which the company would otherwise not have had to incur.

7. In an appropriate case a court will make an order for costs even when there has been no hearing on the merits, the moving party having, in effect, otherwise succeeded in obtaining the relief sought: Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 at 624; [1997] HCA 6.

8. It is if both parties have acted reasonably in commencing and defending the proceedings and their conduct continues to be reasonable until the litigation is settled, that the Court will make no order as to costs: at 625.

9. It is different when one party, after litigating for some time, effectively surrenders to the other: Chapman v Luminis Pty Ltd [2003] FCAFC 162 at [7]. I am satisfied that this is such a case, Mr Calkin having finally accepted that he had no right to keep his property on the land and thus acquiescing to the orders which required its removal, for which he was given time.

10. In all these circumstances, I am satisfied that the just order is that Mr Calkin be required to pay the company’s costs of the proceedings.

Orders

11. For these reasons I order that Mr Calkin pay the company’s costs of these proceedings, as agreed or assessed.

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