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Rose v Richards

Rose v Richards

Case [2005] NSWSC 758 2 August 2005

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CITATION:
Rose v Richards [2005] NSWSC 758

HEARING DATE(S): 23/05/05

JUDGMENT DATE :

2 August 2005

JURISDICTION:
Equity Division

JUDGMENT OF:
Barrett J

DECISION:
Plaintiff's costs of and incidental to notices of motion filed by defendant on 29 April 2005 and 6 May 2005 be paid by defendant, such costs to be assessed on the indemnity basis.

CATCHWORDS:
PROCEDURE - costs - consent orders - no determination on the merits - pursuit by applicant of notice of motion after satisfactory explanations given by respondent - applicant's claims otiose and ill-conceived - order for costs on indemnity basis against applicant

CASES CITED:
Harry Smith Car Sales Pty Ltd v Claycom Vegetable Supply Co Pty Ltd (1978) 29 ACTR 21
Oshlack v Richmond River Council (1998) 193 CLR 72
Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622

PARTIES:
Laurie Rose - Plaintiff
Garry Richards - Defendant

FILE NUMBER(S):
SC 5948/01

COUNSEL:
Mr A.E. Maroya - Plaintiff
Mr J.M. Morris - Defendant

SOLICITORS:
Stuart Fowler & Partners - Plaintiff
Defendant - In person

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

Date

5948/01 LAURIE ROSE v GARRY RICHARDS

JUDGMENT

1 On 23 May 2005, I made, by consent, orders dismissing notices of motion filed by the defendant on 29 April 2005 and 6 May 2005. The plaintiff claims an order that her costs of those notices of motion be paid by the defendant on the indemnity basis.

2 There was no hearing on the merits in relation to either notice of motion. The situation is therefore one to which the following observations of McHugh J in Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622 (at pp.624-4) are applicable:

“In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties. To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action. In administrative law matters, for example, it may appear that the defendant has acted unreasonably in exercising or refusing to exercise a power and that the plaintiff had no reasonable alternative but to commence a litigation. Thus, for example, in R v Gold Coast City Council; Ex parte Raysun Pty Ltd , the Full Court of the Supreme Court of Queensland gave a prosecutor seeking mandamus the costs of the proceedings up to the date when the respondent Council notified the prosecutor that it would give the prosecutor the relief that it sought. The Full Court said that the prosecutor had reasonable ground for complaint in…

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.

Continue reading Rose v Richards

Details

AGLC: Rose v Richards [2005] NSWSC 758
Case: [2005] NSWSC 758
Decision Date: 2 August 2005

CaseChat Overview and Summary

The case of Rose v Richards involved a dispute regarding costs associated with consent orders in a situation where no determination on the merits had been made. The applicant, Rose, sought a notice of motion after the respondent, Richards, provided satisfactory explanations. The nature of the dispute centred around the applicant's pursuit of the notice of motion despite the respondent's explanations, which were deemed sufficient by the court. The legal issues that came before the court centred on whether the applicant's claims were otiose and ill-conceived, and if so, whether an order for costs on an indemnity basis should be made against the applicant.

The court found that the applicant's claims were indeed otiose and ill-conceived, given the respondent's satisfactory explanations. The applicant's persistence in pursuing the notice of motion, despite these explanations, was seen as unwarranted. The court considered the principles of costs in cases involving consent orders and determined that, in this instance, the applicant's actions were not justified. The court emphasised that where a party has provided satisfactory explanations and the other party continues to pursue claims that are ill-conceived, it is appropriate to make an order for costs on an indemnity basis against the pursuing party.

In its reasoning, the court detailed the circumstances that led to the applicant's claims being deemed otiose and ill-conceived. It highlighted the respondent's satisfactory explanations and the lack of merit in the applicant's pursuit of the notice of motion. The court concluded that the applicant's actions were unreasonable and that an order for costs on an indemnity basis was warranted. The final orders of the court included an order for the applicant to pay the respondent's costs on an indemnity basis.

Orders