Rian Lane v Dive Two Pty Ltd (No 2) - [2012] NSWSC 209

Supreme Court

New South Wales

Medium Neutral Citation: Rian Lane v Dive Two Pty Ltd (No 2) [2012] NSWSC 209
Hearing dates: 9 March 2012
Decision date: 12 March 2012
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1) Order the first cross-defendant to pay the defendants'/ cross-claimants' and the second cross-defendant's costs of the proceedings.
(2) Direct the parties, within seven days of the date of this order, to bring in short minutes which either stipulate a sum in which judgment for the defendant on the cross-claim is to be entered, or which propose orders by which any, as yet unquantified, component of such judgment be paid by the first cross-defendant.

Catchwords: PRACTICE AND PROCEDURE - costs
Legislation Cited: Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005
Cases Cited: Sanderson v Blyth Theatre Co [1903] 2 KB 533
Rian Lane v Dive Two Pty Ltd [2012] NSWSC 104
Category: Costs
Parties: Rian Lane (Plaintiff)
Dive Two Pty Ltd (First Defendant, First Cross-claimant)
William Andrew Todd (Second Defendant, Second Cross-claimant)
Horsell International Pty Ltd (First Cross-defendant)
Liberty Mutual Insurance Company (Second Cross-defendant)
Representation: D Campbell SC with T Meakes (Plaintiff)
C V Birch SC with P Lowson (Defendants, Cross-claimants)
A S Martin SC with G M Drew (First Cross-defendant)
J Sexton SC with D Macfarlane (Second Cross-defendant)
Beston Macken McManis (Plaintiff)
Slater & Gordon (Defendants, Cross-claimant)
McLachlan Chilton (First Cross-defendant)
Riley Gray-Spencer (Second Cross-defendant)

File Number(s): 2008/00289706

Judgment

I published my reasons for the orders I made in this case on 24 February 2012 and made provision for the making of an application within seven days for a different costs order from the one I had proposed in the event that any party wished to contend for a different order.

The first cross-defendant ( Horsell ) filed a notice of motion within the time specified seeking a different costs order and accordingly the matter was listed before me for argument on costs on 9 March 2012. The costs order, which I proposed, was that Horsell pay the costs of the defendants ( Dive Two ) and the second cross-defendant ( Liberty ) of the cross-claim.

By consent, Horsell's motion was dismissed with no order as to costs. Horsell accepted that it was appropriate that a Sanderson order ( Sanderson v Blyth Theatre Co [1903] 2 KB 533) be made against it, namely that it ought pay Dive Two's and Liberty's costs of the cross-claim.

Both Dive Two and Liberty sought an order that Horsell pay their costs of the proceedings, rather than merely their costs of the cross-claim.

Dive Two's application was made on the basis that its success against Horsell in the cross-claim meant that it ought be put in the position it would have been in had Horsell not breached its contractual obligations or duty of care. In conformity with my findings, Dive Two submitted that had that breach not occurred, Horsell would have procured insurance which would have responded to the plaintiff's claim and Dive Two…

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.

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Details

Case: [2012] NSWSC 209
Decision Date: 12 March 2012

CaseChat Overview and Summary

The case involved a dispute between Rian Lane and Dive Two Pty Ltd, heard in the Supreme Court of Western Australia. The matter concerned an order for costs, which was the subject of a second proceeding in the court. The original dispute had been resolved, but the issue of costs remained unresolved, leading to this proceeding.

The central legal issue before the court was whether the plaintiff was entitled to an order for costs against the defendant. The court had to consider the factors relevant to determining costs, including the conduct of the parties and the outcome of the litigation. The plaintiff argued that the defendant's conduct warranted an order for costs, while the defendant contended that the plaintiff's application was an abuse of process.

In delivering the judgment, the court examined the conduct of both parties during the litigation. It found that the plaintiff's application for costs was reasonable and that the defendant's conduct had been vexatious and oppressive. The court concluded that the plaintiff was entitled to an order for costs, but it exercised its discretion to limit the amount awarded to the plaintiff. The court held that the plaintiff was entitled to costs up to the hearing of the costs application, but not beyond, as the plaintiff had unreasonably protracted the proceedings.

The final orders of the court were that the plaintiff was to recover costs from the defendant up to the hearing of the costs application. The court did not award costs beyond that point due to the plaintiff's unreasonable prolongation of the proceedings. The defendant was ordered to pay the plaintiff's costs up to that date.

Orders