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Short v Crawley (No. 43)

Short v Crawley (No. 43)

Case [2009] NSWSC 1274 24 November 2009

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CITATION: Short v Crawley (No. 43) [2009] NSWSC 1274

HEARING DATE(S): Written submissions from plaintiffs 13 November 2009; written submissions from defendants 9 November 2009

JUDGMENT DATE :
24 November 2009

JURISDICTION: Equity

JUDGMENT OF: White J

DECISION: Costs of the defendants' application will be part of the costs of the notice of motion of 14 September 2009.

CATCHWORDS: PROCEDURE - costs - general rule costs follow the event - application to vary costs order - costs order related to successful application to vary orders made by consent - where an exercise of discretion is involved that does not of itself warrant departure from normal rule that costs follow the event - defendants' success on some issues not in itself a reason to modify prima facie position - application dismissed

CATEGORY: Procedural and other rulings

CASES CITED: Short v Crawley (No. 42) [2009] NSWSC 1110
Saul v Lin [2007] NSWSC 782
Nardell Coal Corp Ltd (in liq) v Hunter Valley Coal Processing Pty Ltd [2003] NSWSC 642; (2003) 46 ACSR 467; 21 ACLC 1505
Cretazzo v Lombardi (1975) 13 SASR 4
Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304

PARTIES: Roslyn Short as Executrix of the estate of the late Warwick Gordon Short & Anor
v
Christopher Crawley & 9 ors

FILE NUMBER(S): SC 2824/98

COUNSEL: Plaintiff: Mr D Sweeney (sol'r)
Defendants: Mr R Gorczyca (sol'r)

SOLICITORS: Plaintiffs: Freehills
Defendants: Bruce Stewart Dimarco

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Tuesday, 24 November 2009

2824/98 Roslyn Short as executrix of the estate of the late Warwick Gordon Short & Anor v Christopher Crawley & 9 Ors (No. 43)

JUDGMENT

1 HIS HONOUR: On 2 October 2009 on the plaintiffs’ application I made orders varying orders made by consent on 26 November 2008 (Short v Crawley (No. 42) [2009] NSWSC 1110). I then ordered that the defendants pay the plaintiffs’ costs of the plaintiffs’ notice of motion of 14 September 2009. Those orders were made late in the evening of 2 October 2009 after I had delivered extempore reasons. No submissions were made at the time by either party on the question of costs. The order I made reflected the principle that prima facie costs follow the event (Uniform Civil Procedure Rules, r 42.1). The plaintiffs were successful on their application.

2 The defendants apply for that costs order to be discharged and instead it be ordered that the parties pay their own costs of and incidental to the notice of motion filed on 14 September 2009. There was no dispute about the court’s power to discharge the costs order and substitute a new order (Saul v Lin [2007] NSWSC 782 at [13]; Short v Crawley (No. 42) at [68]).

3 The grounds upon which the defendants contend that a different costs order should be made are that:

(a) the consent orders of 26 November 2008 embodied an agreement between the parties. Parties are to be encouraged…

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 Short v Crawley (No. 43)

Details

AGLC: Short v Crawley (No. 43) [2009] NSWSC 1274
Case: [2009] NSWSC 1274
Decision Date: 24 November 2009

CaseChat Overview and Summary

In the case of Short v Crawley (No. 43), the applicants sought to vary an earlier costs order made in relation to an application to vary orders made by consent. The primary issue before the court was whether the applicants were entitled to an order that varied the usual rule that costs follow the event, in light of the defendants' partial success on certain issues.

The applicants argued that despite their failure to achieve a complete resolution of the matter, their partial success should warrant a variation of the costs order. The court was tasked with determining whether the defendants' success on some issues justified a departure from the established principle that costs follow the event, particularly where the exercise of discretion did not inherently warrant such a departure. The applicants further contended that their overall failure in the proceedings should not preclude them from obtaining an order for costs.

The court considered the applicants' submissions and the principles governing costs orders. It held that while the applicants had achieved some success, this alone was not sufficient to justify a departure from the general rule. The court found that the nature of the success achieved did not warrant a modification of the usual rule that costs follow the event. The court concluded that the defendants' partial success did not provide a compelling reason to alter the standard position regarding costs allocation. Consequently, the application to vary the costs order was dismissed.

Orders