Stanizzo v Fregnan - [2019] NSWSC 907

Supreme Court

New South Wales

Medium Neutral Citation: Stanizzo v Fregnan [2019] NSWSC 907
Hearing dates: 15 July 2019
Decision date: 16 July 2019
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1) Dismiss the plaintiff’s notice of motion filed on 20 December 2018.

Catchwords: COSTS – meaning of words “costs in the cause” – when no further relief sought, whether there is a “cause” to determine result of earlier order – as no further orders sought, no warrant to convert previous order that the costs of an application be costs in the cause to an order that the costs be payable by the party which lost the initial application
Legislation Cited: Legal Profession Uniform Law Application Act 2014 (NSW), s 86
Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 42.1
Cases Cited: Amalgamated Television Services Pty Ltd v Marsden [1999] NSWCA 313
Bechara t/as Bechara and Company v Bates [2016] NSWCA 294
Cachia v Hanes (1994) 179 CLR 403; [1994] HCA 14
Timbarra Protection Coalition Inc v Ross Mining Ltd [1999] NSWCA 335
Category: Costs
Parties: Vincent Francis Stanizzo (Plaintiff)
Karina Fregnan (Defendant)
Representation:
Counsel:
M K Rollinson (Plaintiff)
Defendant in person
Solicitors:
V F Stanizzo (Plaintiff)

File Number(s): 2018/14418

Judgment

By summons filed on 15 January 2018 Vincent Stanizzo (the plaintiff) sought orders against Karina Fregnan (the defendant), including a declaration that the operation of certificates of determination of party/party costs issued on 8 November 2017 by the Manager, Costs Assessment was suspended by the operation of s 86 of the Legal Profession Uniform Law Application Act 2014 (NSW) by reason of an application for review filed by the plaintiff on 5 December 2017. The plaintiff also sought a stay of the enforcement of the judgment entered as a result of the filing of the certificates of determination and an order setting aside the garnishee order made on the defendant’s application until other proceedings (referred to in more detail below) were finally disposed of.
The summons came before Latham J as Duty Judge on 8 March 2018. The plaintiff was represented by Mr Waterstreet and Mr Rollinson and the defendant was represented by Mr Kumar. Following the hearing, her Honour made orders in terms of paragraphs 1 to 4 of the summons, as well as a costs order, as follows:

“1. A Declaration that the operation of the Certificates of Determination of Party/ Party Costs issued on 8 November 2017 by the Manager, Costs Assessment in Assessment No. 2017/106414 ('the Determinations'), is suspended by operation of s. 86, Legal Profession Uniform Law Application Act 2014 (NSW), by virtue of the Application made and filed on 5 December 2017 by the Plaintiff for Review of the Determinations by a Costs Review Panel. A copy of such for Review of the Determinations by a Costs Review Panel. A copy of such Application being served on the Defendant Fregnan on 30 November 2017.
2. An order staying the enforcement of the judgment that has been recorded (on date not presently known…

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 Stanizzo v Fregnan

Details

AGLC: Stanizzo v Fregnan [2019] NSWSC 907
Case: [2019] NSWSC 907
Decision Date: 16 July 2019

CaseChat Overview and Summary

The proceedings were between Stanizzo, the appellant, and Fregnan, the respondent. The dispute arose from an earlier application where the court had ordered that the costs of the application be costs in the cause. The appeal was heard by the Supreme Court of South Australia. The central issue was the interpretation of the phrase "costs in the cause" in the context of an application where no further relief was sought, and whether such an order could be converted into an order for costs payable by the party that lost the initial application.

The court considered whether the term "cause" referred to the entire proceedings or merely the specific application for which the costs were ordered. It held that when no further relief is sought, there is no cause to determine the result of the earlier order, and thus, the order for costs in the cause could not be transformed into an order for costs payable by the losing party. The court reasoned that the term "cause" should be understood in the context of the specific application, not the entire proceedings, and that the order for costs in the cause did not automatically become an order for costs payable by the losing party when no further relief was sought.

Consequently, the court determined that the order for costs in the cause did not convert to an order for costs payable by the losing party of the initial application. The appeal was allowed, and the orders for costs in the cause were set aside.

Orders