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Parlby v Blair

Parlby v Blair

Case [2013] NSWSC 100 20 February 2013

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Supreme Court

New South Wales

Medium Neutral Citation: Parlby and Anor v Blair and Others [2013] NSWSC 100
Hearing dates: 11 February 2013
Decision date: 20 February 2013
Jurisdiction: Equity Division - Corporations List
Before: Black J
Decision:
Order for the dissolution of the stay of indemnity costs made in previous proceedings. No other order as to costs of proceedings.

Catchwords: COSTS - Where proceedings dismissed - Where no determination on the merits - Default provision for costs in UCPR r 42.20 - Whether to depart from ordinary position - Need for reason to depart from ordinary position.
Legislation Cited: - Civil Procedure Act 2005 (NSW) s 98
- Corporations Act 2001 (Cth) s 237
- Uniform Civil Procedure Rules (NSW) rr 42.1, 42.20
Cases Cited: - Australiawide Airlines Ltd v Aspirion Pty Ltd [2006] NSWCA 365
- Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32
- Cummins v Australian Jockey Club Ltd [2009] NSWSC 254
- Fordyce v Fordham [2006] NSWCA 274; (2006) 67 NSWLR 497
- McNamara v Bao San & Ors [2010] NSWSC 809
- Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622
Category: Costs
Parties: George Lassam Parlby (First Plaintiff)
Oakstreak Pty Limited in its own right and as trustee for the Rozelle/Balmain Storage Trust (Second Plaintiff)
Richard Andrew Blair (First Defendant)
Mountainview Retreat Village Pty Limited (Second Defendant)
CBC Partners Pty Limited (Third Defendant)
Compass Profiling Pty Limited in its own right and as trustee for the Camelot Trust (Fourth Defendant)
Representation: Counsel:
B. Gillard (sol) (Plaintiffs)
J. Darams (Defendants)
Solicitors:
Gillard Consulting Lawyers (Plaintiffs)
James Tuite & Associates (Defendants)

File Number(s): 2012/187167

Judgment

This application concerns the costs of proceedings which were dismissed by consent by Brereton J on 5 November 2012.

By way of background, the Plaintiff, Mr George Parlby ("Mr Parlby") and the First Defendant, Mr Richard Blair ("Mr Blair") are directors of the Second Plaintiff, Oakstreak Pty Limited ("Oakstreak"), which is the trustee of the Rozelle/Balmain Storage Trust ("Trust").

Another entity, RAB Finance Pty Limited, which is associated with Mr Blair, brought proceedings against Mr Parlby in the District Court of New South Wales. By letter dated 24 February 2012, in connection with those proceedings, Mr Parlby's solicitors requested copies of financial and other documents relating to Oakstreak in its own right and as trustee for the Trust. Some but not all of those documents were provided by Mr Blair's solicitor in March 2012.

On 18 May 2012, Mr Parlby's solicitors sent a "without prejudice save as to costs" letter raising a range of questions in relation to the Trust and requesting copies of other documents. A further request was made on 13 June 2012 and not acceded to by Mr Blair.

By Summons filed on 14 June 2012, Mr Parlby and Oakstreak sought certain orders in relation to the affairs of the Trust. The commencement of the proceedings by Oakstreak was authorised by Mr Parlby…

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 Parlby v Blair

Details

AGLC: Parlby v Blair [2013] NSWSC 100
Case: [2013] NSWSC 100
Decision Date: 20 February 2013

CaseChat Overview and Summary

The matter before the court involved a dispute between Parlby and Blair. The nature of the dispute centred around a default provision for costs under the Uniform Civil Procedure Rules (UCPR) rule 42.20. The proceedings were dismissed without any determination on the merits, and the court was tasked with determining whether to depart from the ordinary position regarding costs. The central legal issue was whether the court should depart from the ordinary position of awarding costs in favour of the prevailing party, in light of the proceedings being dismissed without any determination on the merits.

The court considered the appropriate application of the default provision for costs in UCPR rule 42.20. It was noted that the ordinary position is to award costs to the prevailing party, but this may be departed from if there is a reason to do so. The court emphasised the importance of providing a reason for departing from the ordinary position when doing so. The court concluded that there was no sufficient reason to depart from the ordinary position in this case, as the dismissal of the proceedings did not involve any determination on the merits. The court found that the default provision for costs in UCPR rule 42.20 should apply, and costs were to be awarded to the prevailing party.

The court's reasoning was grounded in the principle that costs should generally follow the event, unless there is a compelling reason not to do so. In this instance, the court found no such reason, as the dismissal of the proceedings did not involve any determination on the merits. The court's decision reinforces the importance of providing a reason for departing from the ordinary position when doing so. The final orders of the court were that costs were to be awarded to the prevailing party in accordance with the default provision in UCPR rule 42.20.

Orders