Phillips v Tobias Partners Pty Ltd (No 2)

Supreme Court

New South Wales

Medium Neutral Citation: Phillips v Tobias Partners Pty Ltd (No 2) [2013] NSWSC 653
Hearing dates: On the papers
Decision date: 30 May 2013
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
Summons and cross summons dismissed - each party to pay their own costs.

Catchwords: Costs - no question of principle.
Cases Cited: Phillips v Tobias Partners Pty Ltd [2013] NSWSC 496
Category: Consequential orders
Parties: Edwin Phillips (Plaintiff/Cross Defendant)
Tobias Partners Pty Ltd (Defendant/Cross Claimant)
Representation: Counsel:
R.I. Bellamy (Plaintiff/Cross Defendant)
S.A. Benson (Defendant/Cross Claimant)
Solicitors:
Bottrill Van Kempen Solicitors (Plaintiff/Cross Defendant)
Lenehan & Co (Defendant/Cross Claimant)

File Number(s): 2012/278149

Judgment

On 3 May 2013 I gave judgment in these proceedings (Phillips v Tobias Partners Pty Ltd [2013] NSWSC 496). I indicated that I proposed to dismiss the appeal and the cross appeal (at [79]). I also stated that "my present view is that the appropriate order is each party should pay their own costs" (at [82]) but stood the matter over so that the parties could address costs, if they so chose, as well as any other orders necessary to reflect a mathematical error in the Local Court judgment and whether any further orders needed to be made in relation to the funds paid into Court.

The parties subsequently notified the Court that they did wish to make any further submissions in relation to costs and there was no need to make any orders in relation to the funds paid into Court. The parties also agreed that the mathematical error in the Local Court judgment could be addressed by enabling the plaintiff in this Court, Edwin Phillips, to set off the amount owing to him as result of the correction of the mathematical error from the amount he will have to pay the defendant in this Court, Tobias Partners Pty Ltd, pursuant to the Local Court's costs order. The parties agreed that the Court should make a declaration to give effect to that.

Accordingly the orders are:

(1) The Plaintiff's summons is dismissed.

(2) The Defendant's cross summons is dismissed.

(3) Declare that the Plaintiff is entitled to deduct from the amount he is required to pay to the defendant pursuant to the costs order made by the Local Court on 20 July 2012 the sum of $2,612.50 together with interest on that sum to the date of payment.

(4) Each party pay their own costs of the proceedings in this Court.

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CaseChat Overview and Summary

In the case of Phillips v Tobias Partners Pty Ltd (No 2), the plaintiff, Mr Phillips, brought an application seeking an order for costs in relation to a dispute that arose out of a property transaction. The defendant, Tobias Partners Pty Ltd, a property development company, was involved in the sale of a property to Mr Phillips, who subsequently sought to rescind the contract on the grounds of alleged misrepresentation and breach of contract. The matter was before the Federal Court of Australia, which was tasked with determining the legal issues surrounding the costs of the proceedings.

The central legal issue before the court was whether the plaintiff was entitled to an order for costs under the circumstances of the case. The court had to consider whether the application raised a question of principle or whether it was a straightforward matter of costs. The court also had to assess whether the application was made in good faith and whether the plaintiff had a reasonable prospect of success in their case. The determination of these issues was crucial in deciding whether the plaintiff was entitled to an order for costs.

The court found that the plaintiff's application for costs did not raise any question of principle and was therefore not eligible for a costs order under the court's discretion. The court held that the application was made in good faith, but the plaintiff's prospects of success were not as strong as initially anticipated. The court concluded that the application did not meet the threshold for an order for costs and dismissed the plaintiff's application. The court emphasised that the decision was based on the specific circumstances of the case and did not set a precedent for future cases.

No specific orders were made in the judgment, as the court dismissed the plaintiff's application for costs. The decision highlights the importance of demonstrating a reasonable prospect of success in seeking an order for costs in the Federal Court of Australia.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Medium Neutral Citation:	Phillips v Tobias Partners Pty Ltd (No 2) [2013] NSWSC 653
Hearing dates:	On the papers
Decision date:	30 May 2013
Jurisdiction:	Common Law
Before:	Beech-Jones J
Decision:	Summons and cross summons dismissed - each party to pay their own costs.
Catchwords:	Costs - no question of principle.
Cases Cited:	Phillips v Tobias Partners Pty Ltd [2013] NSWSC 496
Category:	Consequential orders
Parties:	Edwin Phillips (Plaintiff/Cross Defendant) Tobias Partners Pty Ltd (Defendant/Cross Claimant)
Representation:	Counsel: R.I. Bellamy (Plaintiff/Cross Defendant) S.A. Benson (Defendant/Cross Claimant) Solicitors: Bottrill Van Kempen Solicitors (Plaintiff/Cross Defendant) Lenehan & Co (Defendant/Cross Claimant)
File Number(s):	2012/278149