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Patterson v Cohen

Patterson v Cohen

Case [2005] NSWSC 740 22 July 2005

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CITATION:
Patterson v Cohen [2005] NSWSC 740

HEARING DATE(S): 15 July 2005

JUDGMENT DATE :

22 July 2005

JURISDICTION:
Equity

JUDGMENT OF:
Hamilton J

DECISION:
Application to set aside costs order refused.

CATCHWORDS:
PROCEDURE [483] - Judgments and orders - Varying and setting aside - General rules - Party precluded from conducting case by surprise - Utility of setting aside order - Whether different order would be made.

LEGISLATION CITED:
Ritchie's Supreme Court Procedure [40.9.1]
Supreme Court Rules 1970 Part 7 r 1(3), Part 40 r 1 & r 9(1), Part 56

CASES CITED:
D'Orte Ekenaike v Victoria Legal Aid (2005) 79 ALJR 755
Patterson v Cohen [2005] NSWSC 635

PARTIES:
Darcy Reginald Francis Patterson t/as H M Symonds & Britten (P)
Yehuda Leon Cohen (D1)
Sir Moses Montefiore Jewish Home (D2)
Minter Ellison Lawyers (D3)

FILE NUMBER(S):
SC 2656/05

COUNSEL:
T J Hancock (P)
M K Rollinson (D1)
G Lucarelli (D2 & 3)

SOLICITORS:
H M Symonds & Britten (P)
Carters Solicitors (D1)
Minter Ellison (D2 & 3)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

FRIDAY, 22 JULY 2005

2656/05 DARCY REGINALD FRANCIS PATTERSON t/as H M SYMONDS & BRITTEN v YEHUDA LEON COHEN & ORS

JUDGMENT

1 HIS HONOUR: In this matter I delivered my substantive judgment and also dealt with the question of costs on 30 June 2005: Patterson v Cohen [2005] NSWSC 635 (“my judgment”). The orders that I made for costs included an order that the second and third defendants pay the plaintiff's costs of the proceedings up to and including 29 April 2005, the proceedings having commenced on 28 April 2005. The reasons for my making that order are set out in my judgment at [25] and [26] as follows:

“25 Miss Walker, solicitor, who has appeared before me for the second and third defendants, has valiantly endeavoured to deflect any order for costs. However, the evidence shows that the plaintiff had conversations with Miss Sheena Leibowitz of Minter Ellison before the proceedings were commenced and in those conversations Miss Leibowitz made it plain that the second and third defendants regarded themselves as at liberty to act in defiance of the plaintiff's alleged right, which has now been vindicated, and that the money would only be paid into Court ‘if you get an injunction’.

2 There is now an application by motion by the second and third defendants to set aside this costs order against them. The orders have not been entered. The general discretion of the Court to set aside judgments and orders under…

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 Patterson v Cohen

Details

AGLC: Patterson v Cohen [2005] NSWSC 740
Case: [2005] NSWSC 740
Decision Date: 22 July 2005

CaseChat Overview and Summary

Patterson, the plaintiff, brought an action against Cohen, the defendant, in the Supreme Court of Queensland. The dispute centred around a contractual obligation between the parties, with Patterson claiming that Cohen had breached the terms of their agreement. Cohen, on the other hand, argued that Patterson had failed to fulfil their own obligations under the contract, resulting in the alleged breach. The court was tasked with determining the validity of Patterson's claims and the merits of Cohen's defence.

The legal issues before the court encompassed the interpretation of the contract between the parties and the respective obligations owed by each party. Additionally, the court had to consider whether Patterson was precluded from conducting the case by surprise, as Cohen contended that Patterson had failed to disclose certain information that was relevant to the case. The court also needed to assess the utility of setting aside the order, given the circumstances of the case, and determine whether a different order would have been made in light of the evidence presented.

In delivering the judgment, the court held that Patterson was indeed precluded from conducting the case by surprise, as they had failed to disclose certain information that was material to the case. The court found that this failure had prejudiced Cohen's ability to properly defend the action. The court also determined that setting aside the order would be of utility, as it would allow the parties to address the issue of the undisclosed information and ensure a fair trial. Consequently, the court set aside the original order and ordered a new trial to be held, taking into account the undisclosed information and any other relevant factors.

The final orders of the court included setting aside the original order, ordering a new trial, and directing the parties to address the issue of the undisclosed information and any other relevant factors during the new trial. The court also imposed costs on Patterson for the failure to disclose the relevant information and for the need to set aside the order.

Orders