Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Price v Price [2020] NSWCA 312 Hearing dates: 25 September 2020 Date of orders: 2 December 2020 Decision date: 02 December 2020 Before: Basten JA at [1];
Macfarlan JA at [2];
Meagher JA at [48]Decision: (1) Grant leave to appeal.
(2) Set aside the costs order, being Order 6, made by Pembroke J on 6 February 2020.
(3) Note that no order is made as to the costs of the proceedings at first instance.
(4) Order the respondents to pay the applicant’s costs of the proceedings in this Court.
Catchwords: APPEAL – application for leave to appeal from a costs order – amount in issue substantially less than $100,000 – proper administration of justice required a grant of leave
COSTS – party/party – rule in UCPR r 42.1 that costs prima facie follow the event – orders made by consent without contest or hearing as to the merits – no event for the purposes of UCPR r 42.1 – respondents’ commencement of proceedings precipitous – applicant did not act unreasonably – no order made as to first instance costs
Legislation Cited: Guardianship Act 1987 (NSW), s 6L
Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Cases Cited: CAC v Secretary, Department of Family and Community Services(No 2) [2015] NSWSC 344
Macedonian Church v Eminence Petar (2008) 237 CLR 66; [2008] HCA 42
Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681; [2018] NSWCA 84
Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6
Category: Principal judgment Parties: Mary Price (Applicant)
Christopher Charles Price (First Respondent)
Elizabeth Therese Macri (Second Respondent)
Elisabeth Christine Theodore (Third Respondent)Representation: Counsel:
Solicitors:
M Condon SC (Applicant)
L Fermanis (Respondents)
Dorter Family Lawyers and Mediators (Applicant)
The Norton Law Group (Respondents)
File Number(s): 2020/69978 Decision under appeal
- Court or tribunal:
- Supreme Court of NSW
- Jurisdiction:
- Equity
- Date of Decision:
- 6 February 2020
- Before:
- Pembroke J
- File Number(s):
- 2020/33029
Judgment
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BASTEN JA: I agree with Macfarlan JA.
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MACFARLAN JA: This is an application for leave to appeal from a costs order made by Pembroke J in the Equity Division on 6 February 2020. Whilst this Court would not ordinarily grant leave to appeal against such an order, particularly when the amount involved is substantially less than $100,000, the proper administration of justice requires a grant of leave, as occurred in Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681; [2018] NSWCA 84 (see at [1] per Basten JA). As indicated below, the primary judge in the present case made errors of both principle and fact in exercising his costs discretion.
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The evidence before the primary judge was very limited. The following description of what occurred is based upon the material put before this Court, by way of evidence or concession, upon the basis of which this Court is able to re-exercise the discretion which was not properly…
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- AGLC
- Price v Price [2020] NSWCA 312
- Case
- [2020] NSWCA 312
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court of Appeal was whether the costs order made at first instance was appropriate, particularly in light of the fact that the orders were made by consent without a contest or hearing on the merits. This raised the question of whether there was an "event" for the purposes of rule 42.1 of the Uniform Civil Procedure Rules (UCPR), which generally dictates that costs follow the event. The Court also had to consider the conduct of the parties, specifically whether the respondents' commencement of proceedings was precipitous and whether the applicant had acted unreasonably.
The Court reasoned that where orders are made by consent without a hearing on the merits, there is no "event" in the sense contemplated by UCPR rule 42.1. Consequently, the prima facie rule that costs follow the event does not apply. The Court found that the respondents' commencement of proceedings had been precipitous and that the applicant had not acted unreasonably. Therefore, the Court concluded that no order should have been made as to the costs of the proceedings at first instance.
The Court of Appeal granted leave to appeal, set aside the costs order made by Pembroke J, and made no order as to the costs of the proceedings at first instance. The respondents were ordered to pay the applicant’s costs of the proceedings in the Court of Appeal.
Orders
Orders of the court
(1) Grant leave to appeal.
(2) Set aside the costs order, being Order 6, made by Pembroke J on 6 February 2020.
(3) Note that no order is made as to the costs of the proceedings at first instance.
(4) Order the respondents to pay the applicant’s costs of the proceedings in this Court.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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