SE by her tutor AH v Grech (No 2) - [2020] NSWDC 529

District Court

New South Wales

Medium Neutral Citation: SE by her tutor AH v Grech (No 2) [2020] NSWDC 529
Hearing dates: 08 September 2020
Date of orders: 11 September 2020
Decision date: 11 September 2020
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1)   Plaintiff’s application for the defendant to pay her costs refused.
(2)   Defendant’s application for the plaintiff to pay his costs (on the indemnity or ordered basis) refused.
(3)   Defendant’s alternative application for each party to pay their own costs of these proceedings granted.

Catchwords:
COSTS – damages of $0 awarded in assessment hearing following a claim for personal injury – costs awards in nominal claims – whether plaintiff should be ordered to pay defendant’s costs – whether plaintiff should have “commenced and continued” proceedings in the District Court (Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) r 42.35(2)) – order for each party to pay their own costs of the proceedings

Legislation Cited:
Civil Procedure Act 2005 (NSW) ss 60, 98(1)(a)
Uniform Civil Procedure Rules 2005 (NSW) rr 42.1, 42.35

Cases Cited:
Alltrans Express Ltd v CVA Holdings Ltd [1984] 1 WLR 394
Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [1951] 1 All ER 873
Barescape Pty Limited as trustee for the V's Family Trust & Anor v Bacchus Holdings Pty Limited as trustee for The Bacchus Holdings Trust & Anor (No 12) [2012] NSWSC 1591
Carvajal v Lamba (No 2) [2019] NSWDC 333
Faical Majzoub v Kwon S Hang (22 July 2019)
Gladio Pty Ltd v Buckworth (No.2) [2015] NSWSC 1462
Harrison v Schipp (2002) 54 NSWLR 738
O’Reilly v Western Sussex NHS Trust (No.7) [2015] NSWSC 233
Kandil by his tutor Kandil v Halliday [2017] NSWDC 327
Moubarak v Le No 2) [2019] NSWDC 170
Northern Territory v Sangare [2019] HCA 25; 265 CLR 164; 93 ALJR 959; 372 ALR 117; 60 Fam LR 71
Ohn v Walton (1995) 36 NSWLR 77
SE by her tutor AH v Grech [2020] NSWDC 474
Tartak by her tutor Tartak v Zada [2017] NSWDC 330
Thiess Contractors Pty Ltd v Placer (Granny Smith) Pty Ltd [2001] WASCA 166
Witcombe v Talbot & Oliver (No 2) [2009] WASC 173

Texts Cited:
G E Dal Pont, Law of Costs (4th edition, LexisNexis), 2018

Category: Procedural and other rulings
Parties: Plaintiff: SE by her tutor AH
Defendant: Alesha Ann Grech
Representation:
Counsel:
Plaintiff: Mr J Jobson
Defendant: Mr A. J. J. Renshaw
Solicitors:
Plaintiff: Harrow Legal
Defendant: Hall & Wilcox Lawyers

File Number(s): 2019/00080873
Publication restriction: Nil

Judgment

The costs applications before the court

The plaintiff, a minor, brought proceedings for damages for injuries sustained while a passenger in a motor vehicle being driven by her mother’s partner. Breach of duty was admitted and the sole amount claimed at the hearing (apart from an out of pocket expense of $49) was the sum of $3,500 for the costs of future counselling.
The plaintiff’s claim for this modest sum was unsuccessful. In my judgment…

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.

Keep reading for free

Create a free CaseChat account to read SE by her tutor AH v Grech (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] NSWDC 529
Decision Date: 11 September 2020

CaseChat Overview and Summary

The case of SE by her tutor AH v Grech (No 2) involved a dispute regarding costs after a claim for personal injury damages was assessed and determined to be $0. The parties involved were SE, represented by her tutor AH, and Grech. The dispute arose in the context of the Uniform Civil Procedure Rules 2005 (NSW) concerning the allocation of costs in nominal claims. The court was required to decide whether the plaintiff should be ordered to pay the defendant’s costs, and whether the plaintiff had "commenced and continued" proceedings in the District Court as required by UCPR rule 42.35(2).

The legal issues before the court included the interpretation and application of UCPR rule 42.35(2) and the principles governing costs in nominal claims. The court had to consider whether the plaintiff’s failure to satisfy certain procedural requirements entitled the defendant to an order for costs, and whether such an order was appropriate in light of the nominal nature of the damages awarded. The court examined the procedural history and the arguments presented by both parties to determine the appropriate allocation of costs.

The court found that the plaintiff had not strictly complied with the procedural requirements set out in UCPR rule 42.35(2), which necessitated the plaintiff to commence and continue proceedings in the District Court. However, given the nominal amount of damages awarded and the overall circumstances of the case, the court concluded that it was not just and equitable to order the plaintiff to pay the defendant's costs. The court also rejected the defendant's application for an indemnity costs order, noting the nominal nature of the claim and the absence of any significant prejudice to the defendant. Ultimately, the court granted the defendant's alternative application for each party to bear their own costs of the proceedings.

The final orders were that the plaintiff’s application for the defendant to pay her costs was refused, the defendant’s application for the plaintiff to pay his costs (whether on the indemnity or ordered basis) was also refused, and the defendant’s alternative application for each party to pay their own costs of these proceedings was granted.

Orders

Orders of the court

(1) Plaintiff’s application for the defendant to pay her costs refused.

(2) Defendant’s application for the plaintiff to pay his costs (on the indemnity or ordered basis) refused.

(3) Defendant’s alternative application for each party to pay their own costs of these proceedings granted.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	SE by her tutor AH v Grech (No 2) [2020] NSWDC 529
Hearing dates:	08 September 2020
Date of orders:	11 September 2020
Decision date:	11 September 2020
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Plaintiff’s application for the defendant to pay her costs refused. (2) Defendant’s application for the plaintiff to pay his costs (on the indemnity or ordered basis) refused. (3) Defendant’s alternative application for each party to pay their own costs of these proceedings granted.
Catchwords:	COSTS – damages of $0 awarded in assessment hearing following a claim for personal injury – costs awards in nominal claims – whether plaintiff should be ordered to pay defendant’s costs – whether plaintiff should have “commenced and continued” proceedings in the District Court (Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) r 42.35(2)) – order for each party to pay their own costs of the proceedings
Legislation Cited:	Civil Procedure Act 2005 (NSW) ss 60, 98(1)(a) Uniform Civil Procedure Rules 2005 (NSW) rr 42.1, 42.35
Cases Cited:	Alltrans Express Ltd v CVA Holdings Ltd [1984] 1 WLR 394 Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [1951] 1 All ER 873 Barescape Pty Limited as trustee for the V's Family Trust & Anor v Bacchus Holdings Pty Limited as trustee for The Bacchus Holdings Trust & Anor (No 12) [2012] NSWSC 1591 Carvajal v Lamba (No 2) [2019] NSWDC 333 Faical Majzoub v Kwon S Hang (22 July 2019) Gladio Pty Ltd v Buckworth (No.2) [2015] NSWSC 1462 Harrison v Schipp (2002) 54 NSWLR 738 O’Reilly v Western Sussex NHS Trust (No.7) [2015] NSWSC 233 Kandil by his tutor Kandil v Halliday [2017] NSWDC 327 Moubarak v Le No 2) [2019] NSWDC 170 Northern Territory v Sangare [2019] HCA 25; 265 CLR 164; 93 ALJR 959; 372 ALR 117; 60 Fam LR 71 Ohn v Walton (1995) 36 NSWLR 77 SE by her tutor AH v Grech [2020] NSWDC 474 Tartak by her tutor Tartak v Zada [2017] NSWDC 330 Thiess Contractors Pty Ltd v Placer (Granny Smith) Pty Ltd [2001] WASCA 166 Witcombe v Talbot & Oliver (No 2) [2009] WASC 173
Texts Cited:	G E Dal Pont, Law of Costs (4th edition, LexisNexis), 2018
Category:	Procedural and other rulings
Parties:	Plaintiff: SE by her tutor AH Defendant: Alesha Ann Grech
Representation:	Counsel: Plaintiff: Mr J Jobson Defendant: Mr A. J. J. Renshaw Solicitors: Plaintiff: Harrow Legal Defendant: Hall & Wilcox Lawyers
File Number(s):	2019/00080873
Publication restriction:	Nil