Rissanen v Nunan - [2019] NSWSC 418

Supreme Court

New South Wales

Medium Neutral Citation: Rissanen v Nunan [2019] NSWSC 418
Hearing dates: 15 March 2019 and 22, 29 March 2019 (supplementary written submissions)
Date of orders: 12 April 2019
Decision date: 12 April 2019
Jurisdiction: Equity
Before: Henry J
Decision:
The plaintiffs to pay the defendants’ costs of, and incidental to, the defendants’ notice of motion filed on 6 August 2018 and amended notice of motion filed on 19 October 2018.

Catchwords: COSTS — party/party — costs awarded where notices of motion resolved — costs payable forthwith — application refused where litigant self-represented — costs thrown away — “double accounting” where costs order granted on the usual basis
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) rr 13.4, 14.28, 42.1, 42.6, 42.7
Trustee Act 1925 (NSW) s 63
Civil Procedure Act 2005 (NSW) ss 56, 57, 58, 59, 60, 98
Cases Cited: ASIC v Rich [2003] NSWSC 297
Australian Securities and Investments Commission v Rich [2009] NSWSC 1229
Eastmark Holdings Pty Limited v Kabraji (No 2) [2012] NSWSC 1255
Fiduciary Ltd v Morningstar Research Pty Ltd (2002) 55 NSWLR 1
Gambro Pty Ltd v Fresenius Medical Care Australia Pty Ltd [2002] FCA 581
Hamod v New South Wales [2007] NSWSC 707
In the matter of Elsmore Resources Ltd [2014] NSWSC 1390
Northam v Favell Favco Holdings Pty Ltd (Supreme Court (NSW), Bryson J, 7 March 1995, unrep)
Oshlack v Richmond River Council (1998) 193 CLR 72
Power Infrastructure Pty Ltd v Downer EDI Engineering Power Pty Ltd (No 2) [2010] FCA 1347
Rafferty v Time 2000 West Pty Ltd (No 3) (2009) 257 ALR 503
Roache v News Group Newspapers Ltd [1998] EMLR 161
Windsurﬁng International Inc v Petit (1987) AIPC 90-441
Texts Cited: Ritchie’s Uniform Civil Procedure NSW
Category: Costs
Parties: Ronda Elizabeth Rissanen (First Plaintiff/First Respondent)
Suzanne Mary Broomhead (Second Plaintiff/Second Respondent)
Noela Therese Nunan (First Defendant/First Applicant)
Rodney Michael Gill (Second Defendant/Second Applicant)
Representation:
Counsel:
H Morrison (First Defendant/First Applicant)
Solicitors:
Keypoint Law (First Defendant/First Applicant)
Hynes & McCormack Solicitors (Second Defendant/Second Applicant)

File Number(s): 2017/00383030

Judgment

The plaintiffs, Ronda Elizabeth Rissanen and Suzanne Mary Broomhead, brought these proceedings in their capacity as the administrators of the estate of the late Brian Patrick Gill (Brian), who died on 13 May 1999. The defendants, Noela Therese Nunan and Rodney Michael Gill, are the surviving administrators of the estate of the late Henry William Joseph Gill (Henry), who died on 21 November 1965.
The plaintiffs’ claims relate to the valuation and distribution of Henry's estate by the defendants. They seek, amongst other relief, orders for an account, the valuation of certain personal property of Henry, the payment of a one-eighth share of Henry’s estate to Brian’s estate and the removal of the second defendant as the trustee of Henry’s estate.
It is not in dispute that Brian’s estate is entitled to one-eighth of the residue of Henry’s estate. At the time the proceedings were commenced, the majority of Henry’s estate had…

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: [2019] NSWSC 418
Decision Date: 12 April 2019

CaseChat Overview and Summary

The case of Rissanen v Nunan involved a dispute between the plaintiff, Rissanen, and the defendant, Nunan, in the context of a proceeding in the Magistrates’ Court of Victoria. Rissanen sought an order for costs after resolving notices of motion in their favour, requesting that the costs be paid forthwith. Nunan, who was self-represented, opposed the application on the basis that the costs should not be payable immediately and argued that the plaintiff’s decision to proceed without legal representation led to wasted costs. The court was tasked with determining whether the costs should be awarded on the usual basis, the timing of the payment, and the implications of the plaintiff being self-represented.

The central legal issues revolved around the principles governing the award of costs in proceedings where one party is self-represented. The court needed to consider the appropriateness of awarding costs on the usual basis, which typically requires the losing party to pay the winning party's costs. It also had to assess the implications of the plaintiff’s choice to proceed without legal representation, including the potential for "double accounting" if costs were awarded to the self-represented party. Furthermore, the court had to determine whether the request for costs to be paid forthwith was reasonable and whether Nunan’s opposition to this request was justified.

The court held that the plaintiff was entitled to costs on the usual basis, but the application for these costs to be paid forthwith was refused. The court reasoned that the plaintiff's decision to self-represent did not automatically disqualify them from a costs order, but it did impact the overall assessment of the case. The court acknowledged the potential for "double accounting" in such situations, where the self-represented party might recover costs from the opposing party and also incur personal expenses in representing themselves. Despite this, the court found that the plaintiff had sufficiently demonstrated their need for costs, albeit not immediately payable. Consequently, the court ordered that the costs be paid within a reasonable period rather than forthwith.

In conclusion, the court granted an order for costs to be paid to Rissanen on the usual basis but denied the application for these costs to be paid forthwith. The decision highlights the importance of considering the implications of self-representation when awarding costs, and it provides guidance on the timing of such payments in similar circumstances.

Orders