Sobalirov v Bullen

[2020] NSWSC 1643

Supreme Court

New South Wales

Medium Neutral Citation:	Sobalirov v Bullen [2020] NSWSC 1643
Hearing dates:	16 November 2020
Decision date:	16 November 2020
Jurisdiction:	Equity - Expedition List
Before:	Sackar J
Decision:	See para [8]
Catchwords:	COSTS — Party/Party — Whether costs should follow the event — Whether s 60 of the Civil and Administrative Tribunal Act 2013 (MSW) binds Supreme Court — Held that it does not
Legislation Cited:	Civil and Administrative Tribunal Act2013 (NSW) s 60
Category:	Costs
Parties:	Jane Leslie Sobalirov (plaintiff) Jean Margaret Bullen (defendant)
Representation:	Counsel: C Harris SC (plaintiff) W Muddle SC, I Stanley (defendant) Solicitors: Matthews Folbigg Lawyers (plaintiff) Solomon Tudehope Solicitors (defendant)
File Number(s):	2020/00247484

Judgment – Ex tempore

1. These proceedings were removed from NCAT as a result of an application made by Mrs Bullen. I acceded to that request because of the relationship between the NCAT proceedings and proceedings which involved Geoffrey (her son) and Mrs Bullen which were outstanding in this Court at that time. The application before me deals with the costs of the proceedings removed from NCAT into this Court.

2. I determined the removed proceedings should be determined first, which was not opposed, because of the impact it may have on the outstanding proceedings.

3. I have received written and oral submissions on costs. The reasons I consider costs should follow the event are, first, the plaintiff has been unsuccessful. Secondly, although s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) has been relied upon, it does not bind me it seems on an application such as this. These are not proceedings before NCAT. They are proceedings before this Court, albeit removed from NCAT. Section 60 I should add in passing provides that each party before NCAT should pay their own costs unless there are special circumstances that make such an order inappropriate.

4. In any event, even if s 60 were to apply, there are circumstances the Act states may warrant a different order. Two of those circumstances are, first of all, the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law. In addition the complexity of the case may have a bearing.

5. Although I accept that Jane's position was arguable, it nonetheless was unsupported by any medical evidence. I do not attribute any mischief on her part, nor do I necessarily attribute any motivation on her part which was inappropriate. In my view, she was entitled to make that application, but nonetheless it seems to me in the absence of medical evidence, and in the face of Mrs Bullen giving evidence herself and the findings I have made, her case, objectively was not a strong one.

6. The case in my view was also complex in a number of respects. Not only factually, but legally.

7. Leaving all that to one side, as I have said it does not appear to me that s 60 binds me. These proceedings were conducted not before an informal tribunal such as NCAT but before the superior court of this State. Everyone was represented by counsel. The plaintiff was unsuccessful and I think, as a matter of discretion, costs ought to follow the event.

8. I would therefore order that the plaintiff pay the defendant's costs on an ordinary basis for those proceedings.

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Decision last updated: 18 November 2020