Penfold v Higgins

[2003] NTSC 89

Penfold & Anor v Higgins & Anor [2003] NTSC 89

PARTIES:ROBERT PENFOLD and HUNT AUSTRALIA PTY LTD

v

BERNARD HIGGINS and NORTHERN LAND COUNCIL

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO:279 of 1997 (9726456)

DELIVERED:  15 August 2003

HEARING DATES:  14 July 2003

DECISION OF:  MILDREN J

CATCHWORDS:

REPRESENTATION:

Counsel:

Plaintiffs:P Heywood-Smith QC

Defendants:M Lynch

Solicitors:

Plaintiffs:Ward Keller

Defendants:NLC

Judgment category classification:    C

Decision ID Number:  

Number of pages:  14

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Penfold & Anor v Higgins & Anor [2003] NTSC 89

No. 279 of 1997 (9726456)

BETWEEN:

ROBERT PENFOLD and HUNT AUSTRALIA PTY LTD

Plaintiffs

AND:

BERNARD HIGGINS and NORTHERN LAND COUNCIL

Defendants

CORAM:    MILDREN J

REASONS FOR DECISION

(Delivered 15 August 2003)

1. On 11 December 2002, I entered judgment for the plaintiff Robert Penfold against the defendants in the sum of $100,800, and I entered judgment for the plaintiff Hunt Australia Pty Ltd in the sum of $533,050.  I also published my reasons, and I said that I would hear the parties as to costs.

2. Eventually, on 14 July 2003, I heard the parties’ submissions as to costs.

   Orders sought by plaintiffs

3. The plaintiffs seek the following orders:

   (a)An order for indemnity costs against the defendants.  This is opposed by the defendants, although the defendants concede that the plaintiffs are entitled to a limited costs order on a party/party basis:  see orders sought by defendants, infra.

   (b)An order backdating any order for costs to the date of judgment so that interest on costs may be recovered.  This is also opposed by the defendants.

   Orders sought by defendants

4. The defendants submit that this is an appropriate case for a differential costs order in their favour, on the basis that they succeeded on two issues which had considerably prolonged the proceedings.  They seek an order that the plaintiffs pay their costs of those issues, or, alternatively, an order that the plaintiffs recover only a percentage of their costs.

   Plaintiffs’ claim for indemnity costs

5. In  Vivanet v Power [2001] NTSC 66; (2001) 2 NTJ 1192, I said the general rule is that costs are awarded on the standard basis, but that the discretion to award costs on an indemnity basis, whilst unfettered, must nevertheless be exercised judicially and, generally speaking, that means that special circumstances must be shown warranting a departure from the general rule.

6. What matters do the plaintiffs rely upon to justify a departure from the general rule?  First, it was submitted that the defendants must have known that the defences pleaded to the claims were hopeless, but they persisted with these defences until the morning of the trial.  In a number of cases, indemnity costs have been awarded against a plaintiff who has persisted with a hopeless case:  see, for example, Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd and Others (1988) 81 ALR 397 at 401 per Woodward…