Steele-Smith v Liberty Financial Pty Ltd (No 2) - [2005] NSWSC 487

CITATION:
Steele-Smith & Ors v Liberty Financial Pty Ltd & Anor (No 2) [2005] NSWSC 487

HEARING DATE(S): 28 April, 2005; written submissions 16 May 2005

JUDGMENT DATE :

23 May 2005

JURISDICTION:
Equity Division

JUDGMENT OF:
Palmer J

DECISION:
Plaintiffs ordered to pay the Defendants' costs of the Statement of Claim and the costs of the Defendants and the third party of the First and Second Cross Claims.

CATCHWORDS:
COSTS - DISCRETION - The Plaintiffs unjustifiably commenced proceedings against the Defendants - the Defendants cross claimed against a third party - neither the Defendants nor the third party should have been put to the expense of the proceedings - scope of discretion as to costs discussed. - COSTS - LITIGANT IN PERSON - Held: a litigant who chooses not to obtain legal representation should not be given any special consideration in the making of costs orders.

LEGISLATION CITED:
Supreme Court Act 1970 (NSW) - s.76

CASES CITED:
- Edginton v Clark [1964] 1 QB 367
- Oshlack v Richmond River Council (1998) 193 CLR 72
- Sanderson v Blyth Theatre Co [1903] 2 KB 533
- Thomas v Times Book Co Ltd [1966] 2 All ER 241

PARTIES:
Doreen Steele-Smith - First Plaintiff/First Cross Defendant to 2nd Cross Claim
Tony Steele - Second Plaintiff/Second Cross Defendant to 2nd Cross Claim
Maxwell Developments Pty Ltd - Third Plaintiff/Third Cross Defendant to 2nd Cross Claim
Liberty Financial Pty Ltd - First Defendant/First Cross Claimant to 1st Cross Claim
Liberty Funding Pty Ltd - Second Defendant/Second Cross Claimant to 1st Cross Claim
Vestecorp Financial Services Pty Ltd - Cross Defendant to 1st Cross Claim/Cross Claimant to 2nd Cross Claim

FILE NUMBER(S):
SC 4778/04

COUNSEL:
- Trevor Steele (litigant in person) appeared by leave, pursuant to Power of Attorney, for the First and Second Plaintiffs
- E. Hodgman (Sol) - First and Second Defendants/First and Second Cross Claimants to 1st Cross Claim
- C. Bavin (Sol) - Cross Defendant to 1st Cross Claim/Cross Claimant to 2nd Cross Claim

SOLICITORS:
Dibbs Barker Gosling - First and Second - Defendants/First and Second Cross Claimants to 1st Cross Claim
- Hunt & Hunt - Cross Defendant to 1st Cross Claim/Cross Claimant to 2nd Cross Claim

LOWER COURT JURISDICTION:

1 On 28 April 2005 I delivered judgment in this matter (“the first judgment”) and reserved for argument the question of costs. The parties agreed that their submissions on costs should be made in writing, without further oral argument. This judgment assumes that the reader is familiar with the first judgment.

2 All parties have now delivered written submissions. Those of Mr Trevor Steele are difficult to follow. I gather, however, that Mr Steele submits that the first judgment is wrong and that the Plaintiffs should have succeeded in their claims against the Defendants, so that, at the least, there should be no order that the Plaintiffs pay the Defendants’ costs, each party being left to pay his, her or its respective costs. Alternatively, he says that the…

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: [2005] NSWSC 487
Decision Date: 23 May 2005

CaseChat Overview and Summary

Steele-Smith v Liberty Financial Pty Ltd (No 2) involved a dispute between the plaintiffs and the defendants over certain financial matters. The plaintiffs had unjustifiably commenced proceedings against the defendants, who in turn cross-claimed against a third party. The court was tasked with determining the appropriate exercise of its discretion regarding costs, and whether either the defendants or the third party should be spared the expense of the proceedings. Additionally, the court had to consider the implications of the plaintiffs' decision to proceed as litigants in person on the making of costs orders.

The primary legal issues before the court were the scope of its discretion in awarding costs and the appropriate treatment of litigants in person. The court was required to examine whether the defendants and the third party should be exempt from the costs of the proceedings, and if so, under what circumstances. Furthermore, the court needed to address the plaintiffs' contention that their status as litigants in person should influence the costs decision.

The court held that neither the defendants nor the third party should bear the costs of the proceedings, as the plaintiffs' claims were unjustified. The court emphasised that a litigant who chooses to represent themselves should not receive special consideration in the making of costs orders. The court's discretion in awarding costs was broad, and it could consider all relevant factors, including the conduct of the parties and the merits of the claims. The plaintiffs' decision to proceed without legal representation did not alter the outcome, as the court found their claims to be without merit. Consequently, the defendants and the third party were not liable for the costs of the proceedings.

In light of the findings, the court made orders that the defendants and the third party were not to be charged with the costs of the proceedings. The plaintiffs were ordered to pay the defendants' costs on an indemnity basis, reflecting the unjustified nature of their claims. This decision underscores the importance of the merits of claims and the conduct of the parties in determining the appropriate exercise of the court's discretion regarding costs.

Orders