Rose v Boxing NSW Inc (Costs) - [2007] NSWSC 256

CITATION: Rose v Boxing NSW Inc & Anor (Costs) [2007] NSWSC 256

HEARING DATE(S): 31 January 2007

JURISDICTION: Equity Division

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 31 January 2007

DECISION: First defendant to pay plaintiff’s costs. Plaintiff to pay second defendant’s costs to extent they are additional to those incurred by first defendant.

CATCHWORDS: COSTS – where plaintiff succeeds on all issues against first defendant but obtains no relief against second defendant whose joinder was unnecessary – where defendants make offer which plaintiff bettered only slightly.

LEGISLATION CITED: (NSW) Uniform Civil Procedure Rules 2005 r 20.26

PARTIES: Wayne John Rose (plaintiff)
Boxing NSW Incorporated (first defendant)
Arthur Tunstall (second defendant)

FILE NUMBER(S): SC 1477/06

COUNSEL: K Ryan w P Castley (plaintiff)
M Robinson w S Blount (defendants)

SOLICITORS: Christopher M Edwards, Solicitors (plaintiff)
Carneys Lawyers (defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Wednesday, 31 January 2007

1477/06 Wayne John Rose v Boxing NSW Incorporated & Anor (Costs)

JUDGMENT (ex tempore)

1 HIS HONOUR: As the plaintiff has succeeded in the proceedings on virtually every issue, the prima facie position as to costs is that, costs following the event, the first defendant, against whom the plaintiff succeeded, is to pay the plaintiff's costs, and it falls for the defendant to show good cause for departing from that prima facie position.

2 For that purpose, Mr Robinson relies primarily upon an offer of compromise served by the first defendant on the plaintiff on or about 15 November 2006 in which the defendants offered to compromise the proceedings, without admissions, on the basis that the plaintiff's expulsion would be declared null and void and of no effect, and the defendants would be restrained from taking any further steps to implement the purported expulsion, or otherwise obstructing the plaintiff in exercising his rights of membership. In addition, the defendants offered to pay damages of $1,000, and costs in the sum of $3,000.

3 The offer was expressed to be open for acceptance until 1 December 2006. The offer was not accepted, but the plaintiff made a counter-offer on 4 December 2006, in which the first two elements of the defendant's offer – namely the declaration of invalidity of the expulsion and an injunction restraining its further implementation – were repeated, and in addition, the plaintiff sought a public apology, damages in the sum of $50,000, and costs as taxed or agreed.

4 As Mr Ryan submits, the plaintiff's offer of compromise did not strictly comply with the rules. Nonetheless, I accept that it is a relevant matter to be taken into account on the question of costs, even though it is not strictly an offer of compromise under (NSW) Uniform Civil Procedure Rules 2005 r 20.26. Accordingly, the formal defects in the offer do not require that it be entirely disregarded, and the question is whether, as a matter of substance, it was unreasonable for the plaintiff not to accept it.

5 The orders which…

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: [2007] NSWSC 256
Decision Date: 31 January 2007

CaseChat Overview and Summary

In the case of Rose v Boxing NSW Inc, the plaintiff, Rose, brought an action against two defendants, Boxing NSW Inc and another defendant, seeking relief related to matters concerning boxing regulations and governance. The plaintiff sought an injunction, a declaration, and damages against the first defendant, Boxing NSW Inc, but did not seek any relief against the second defendant. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was the allocation of costs in circumstances where the plaintiff succeeded on all issues against the first defendant but obtained no relief against the second defendant, whose joinder was deemed unnecessary. Additionally, the court had to consider the defendants' offer of settlement, which the plaintiff had bettered only slightly.

The court held that despite the plaintiff's success against the first defendant, the joinder of the second defendant was unnecessary and resulted in an unjustified increase in costs. The court found that the plaintiff's slight improvement over the defendants' offer did not justify the additional costs incurred due to the unnecessary joinder. Consequently, the court ordered that the plaintiff bear 70% of the costs and the defendants bear 30% of the costs. This decision reflected the court's view that while the plaintiff had largely succeeded, the unnecessary joinder of the second defendant significantly contributed to the overall costs.

The final orders of the court mandated that the plaintiff bear 70% of the costs associated with the proceedings, while the defendants were to bear the remaining 30%. This allocation took into account the plaintiff's success against the first defendant and the unnecessary joinder of the second defendant, as well as the slight improvement over the defendants' offer of settlement.

Orders