Sethi v The Owners – Strata Plan 93392 (No 8) - [2024] NSWSC 213

Supreme Court

New South Wales

Medium Neutral Citation: Sethi v The Owners – Strata Plan 93392 (No 8) [2024] NSWSC 213
Hearing dates: On the papers
Date of orders: 06 March 2024
Decision date: 06 March 2024
Jurisdiction: Common Law
Before: Chen J
Decision:
Order, pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the plaintiff pay the defendant’s costs of the proceedings, and of the notice of motion filed 17 November 2023, in the gross sum of $213,000.00.

Catchwords:
COSTS – party/party – self-represented litigant – where application made by defendant for gross sum costs orders under s 98(4)(c) of the Civil Procedure Act 2005 (NSW) following summary dismissal of plaintiff’s claim – where conduct of the plaintiff significantly increased costs and disbursements incurred by the defendant – application granted

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 39
Beach Petroleum NL v Johnson(No 2) (1995) 57 FCR 119; [1995] FCA 350
Brown v The Stables Perisher Management Pty Ltd (No 2) [2022] NSWSC 902
Hamod v State of New South Wales [2011] NSWCA 375
Hancock v Rinehart (Lump sum costs) [2015] NSWSC 1640
Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213
Sethi v The Owners – Strata Plan No 93392 (No 6) [2023] NSWSC 1368
Sethi v The Owners – Strata Plan 93392 (No 7) [2023] NSWSC 1647

Category: Costs
Parties: Akhil Sethi (plaintiff)
The Owners – Strata Plan 93392 (defendant)
Representation: Solicitors:
Plaintiff (self-represented)
Eakin McCaffery Cox (defendant)

File Number(s): 2023/00137553
Publication restriction: Nil

JUDGMENT

Introduction

This is an application by the defendant for a gross sum costs order under s 98(4)(c) of the Civil Procedure Act 2005 (NSW) (‘the CPA’) arising from orders I made on 13 November 2023, including an order summarily dismissing the plaintiff’s proceedings: Sethi v The Owners – Strata Plan No 93392 (No 6) [2023] NSWSC 1368 (‘the primary judgment’).
At the time I delivered my reasons, the defendant indicated its intent to pursue the current application and, on 17 November 2023, filed a notice of motion seeking orders to that effect.
The disposition of the defendant’s application was delayed by applications made by the plaintiff for me to recuse myself and for the orders made on 13 November 2023 to be set aside. In connection with the plaintiff’s applications, orders were made for the filing and service of evidence, and submissions.
On 22 December 2023, I dismissed the plaintiff’s applications: Sethi v The Owners – Strata Plan 93392 (No 7) [2023] NSWSC 1647. On that day, I also made orders dealing with the filing and service of evidence and submissions in connection with the defendant’s costs application: the defendant was ordered to file and serve evidence and submissions in support by 25 January 2024 (the defendant complied with this order); the plaintiff was to file and serve evidence and submissions in support by 29 February…

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: [2024] NSWSC 213
Decision Date: 06 March 2024

CaseChat Overview and Summary

The defendant, The Owners – Strata Plan 93392, filed an application for gross sum costs orders under section 98(4)(c) of the Civil Procedure Act 2005 (NSW) against the plaintiff, Sethi, following the summary dismissal of Sethi's claim. Sethi, who was self-represented, brought the action against the defendant in relation to a dispute under the Strata Schemes Management Act 1996 (NSW). The defendant's application for costs was predicated on the basis that Sethi's conduct had significantly increased the costs and disbursements incurred by the defendant.

The central legal issue before the court was whether the defendant was entitled to a gross sum costs order due to the plaintiff's conduct. The court had to consider the provisions of section 98(4)(c) of the Civil Procedure Act 2005 (NSW), which allows for such orders in cases of unreasonable conduct by a party. In this instance, the court was tasked with determining whether Sethi's conduct was unreasonable and whether it had substantially contributed to the escalation of costs and disbursements for the defendant. The court reviewed the nature and extent of Sethi's conduct, including any procedural missteps or lack of cooperation that may have contributed to the increased costs.

The court granted the defendant's application for gross sum costs orders. It found that Sethi's conduct throughout the proceedings was unreasonable and had indeed significantly increased the costs and disbursements for the defendant. The court detailed specific instances of Sethi's conduct that were deemed unreasonable, including repeated failures to comply with procedural requirements and a lack of cooperation during the litigation process. Given these findings, the court concluded that the defendant was entitled to the costs orders sought under section 98(4)(c) of the Civil Procedure Act 2005 (NSW).

The final orders of the court included the granting of the defendant's application for gross sum costs orders. The court set the amount of costs payable by Sethi to the defendant, reflecting the significant increase in costs and disbursements attributable to Sethi's unreasonable conduct.

Orders