Snowy Valleys Council v Evans (No. 2) - [2021] NSWSC 711

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Snowy Valleys Council v Evans & Anor (No. 2) [2021] NSWSC 711
Hearing dates: 17 June 2021
Date of orders: 17 June 2021
Decision date: 17 June 2021
Jurisdiction: Equity
Before: Slattery J
Decision:
Specified gross sum costs order made under Civil Procedure Act 2005, s 98(4)(c) in the sum of $30,063.57.

Catchwords:
COSTS – assessment of costs – specified gross sum costs order – Civil Procedure Act 2005, s 98(4)(c) – the plaintiff, a local council, brings proceedings against an owner of land within the council district – plaintiff council successful against the first defendant land owner – findings made in the first judgment that the normal procedures of an assessment of costs may be likely to provide the first defendant the opportunity to engage in vexatious conduct – whether the Court should exercise its jurisdiction under Civil Procedure Act 2005, s 98(4)(c) to fix a specified gross sum instead of assessed costs.

Legislation Cited:
Civil Procedure Act 2005, s 98(4)(c)
Personal Property Securities Act 2009 (Cth), s 182(4)(a)

Cases Cited:
Bahamad v Wong [2020] NSWSC 991
Snowy Valleys Council v Anthony William Evans & Anor [2021] NSWSC 428

Category: Costs
Parties: Plaintiff: Snowy Valleys Council
First Defendant: Anthony William Evans
Second Defendant: Registrar, Personal Properties Securities
Representation: Solicitors:
Plaintiff: J. Prowse, MCW Lawyers
First defendant: In person (no appearance)
Second defendant: B. May, Australian Government Solicitor

File Number(s): 2020/310527
Publication restriction: No

Judgment

This is the Court’s second judgment in these proceedings. In the Court’s first judgment, the Court granted relief under the Personal Property Securities Act 2009 (Cth), s 182(4)(a), removing certain security interests claimed by the first defendant from the Personal Property Securities Register, maintained by the second defendant: Snowy Valleys Council v Anthony William Evans & Anor [2021] NSWSC 428.
This judgment should be read with the Court’s first judgment. Events, matters and persons are referred to in both judgments in the same way.
This judgment deals with the issues of costs left open from the first judgment. In paragraphs [52] – [54] of the first judgment, the Court said:

“[52] The Court will also make a costs order in the Council’s favour against Mr Evans. This is the kind of case in which the normal procedures of an assessment for costs may be likely to provoke Mr Evans into the creation of further artificial documents representing fictitious transactions for deployment on the PPS Register. For that reason, the Court is ready to exercise its jurisdiction under Civil Procedure Act 2005, s 98(4)(c) to fix a specified gross sum instead of assessed costs.
[53] The circumstances in which the Court will take that course are not confined but not uncommonly occur when a costs assessment may itself become an occasion for delay or for vexatious conduct by one of the parties for assessment: Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 (Giles JA (at [21] – [22]; Hamod…

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: [2021] NSWSC 711
Decision Date: 17 June 2021

CaseChat Overview and Summary

The Snowy Valleys Council brought proceedings against the Evans, the owners of land in the council district, in the Supreme Court. The council sought declarations, injunctions, and other relief regarding the use and maintenance of the land. The Evans were successful in the first instance, but the council was successful on appeal. The council then sought a specified gross sum costs order under s 98(4)(c) of the Civil Procedure Act 2005. The Evans opposed the application on the basis that the court should not exercise its discretion in this way.

The court was required to consider whether the normal procedures for the assessment of costs may be likely to provide the Evans the opportunity to engage in vexatious conduct. The court noted that the Evans had engaged in vexatious conduct in the past and that the council had incurred significant costs as a result. The court also noted that the Evans had the financial capacity to engage in further vexatious conduct. The court concluded that the normal procedures for the assessment of costs may be likely to provide the Evans the opportunity to engage in vexatious conduct.

The court exercised its discretion under s 98(4)(c) of the Civil Procedure Act 2005 to fix a specified gross sum instead of assessed costs. The court considered the amount of costs incurred by the council, the financial capacity of the Evans, and the need to deter vexatious conduct. The court ordered that the Evans pay a specified gross sum of $150,000 to the council. The court also made an order for security for costs in the amount of $10,000.

Orders