Stokes v McCourt (Costs) - [2014] NSWSC 63

Supreme Court

New South Wales

Medium Neutral Citation: Stokes v McCourt (Costs) [2014] NSWSC 63
Hearing dates: 04/02/2014, 05/02/2014 and 06/02/2014
Decision date: 06 February 2014
Jurisdiction: Equity Division
Before: McDougall J
Decision:
On plaintiff's motion: no order as to costs up to conclusion of first day of hearing. Tutor to pay plaintiff's and defendant's costs thereafter on the indemnity basis. Certain costs to set off. Reserve costs of defendant's motion.

Catchwords:
PROCEDURE - costs - recovery of costs - whether tutor may be a "party" for the purposes of making costs orders - whether costs orders may be made between tutor and person under legal incapacity

PROCEDURE - costs - departing from the general rule - order for costs on indemnity basis - whether order for indemnity costs appropriate where proceedings drawn out unnecessarily
PROCEDURE - costs - set-off - whether costs order against tutor can be set off against costs order in favour of tutor made when tutor was conducting litigation on person under legal incapacity's behalf
Legislation Cited: Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules (NSW) 2005
Cases Cited: Stokes (by a tutor) v McCourt [2013] NSWSC 1014
Yakmor v Hamdoush (No 2) (2009) 76 NSWLR 148
Category: Costs
Parties: Vanessa Therese Marge Veronica Stokes (Plaintiff)
Matthew Robert Ernest McCourt (Defendant)
Vanessa Therese Marge Veronica Stokes by her tutor Paul Kenneth Stokes
Representation: Counsel:
A Cotter-Moroz (Plaintiff)
J Bunning (Defendant)
J Dupree (Plaintiff's Tutor)
Solicitors:
Trenches, McKenzie Cox Solicitors (Plaintiff)
Wiltshire Lawyers (Defendant)
Somerville Laundry Lomax (Plaintiff's Tutor)

File Number(s): 2010/148874

Judgment (ex tempore - revised 6 feburary 2014) - On costs; see transcript p 165

HIS HONOUR: When the present hearing commenced three days ago, on 4 February 2014, I noted that there were two notices of motion. One was filed by the plaintiff in her personal capacity seeking the removal of her father as tutor in the proceedings. The other was filed by the defendant, seeking a stay of certain orders made for valuation of property.

I dealt with the plaintiff's notice of motion yesterday. I will not repeat any of the history or other matters set out. It is sufficient to note that I concluded that, after what seemed to me to be excessively drawn out and adversarial argumentation, I made an order for removal of the tutor.

In relation to the defendant's notice of motion, the Court has been informed that the parties have agreed on what is to be done. Accordingly, there is no need to do anything other than make the orders sought by consent (on the assumption that they appear to be proper). I will do that after dealing with the question of costs.

The defendant's notice of motion for a stay sought specifically (prayer 5) "that the issue of costs be reserved". Mr Bunning of counsel, for the defendant, said that his client did not seek any other order in respect of that notice of motion.

The plaintiff and the defendant each sought an order 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.

Continue reading Stokes v McCourt (Costs)

Details

AGLC: Stokes v McCourt (Costs) [2014] NSWSC 63
Case: [2014] NSWSC 63
Decision Date: 06 February 2014

CaseChat Overview and Summary

The case of Stokes v McCourt was heard in the Federal Circuit and Family Court of Australia. The dispute involved a legal representative, referred to as the tutor, who had been appointed to act on behalf of an individual under legal incapacity. The primary issue was whether the tutor could be considered a party for the purpose of making costs orders and if costs could be awarded between the tutor and the person under legal incapacity. Additionally, the case addressed whether costs on an indemnity basis could be awarded in cases where proceedings were unnecessarily prolonged and whether costs awarded to the tutor could be offset against costs awarded to the tutor when acting on behalf of the incapacitated person.

The court considered whether the tutor could be classified as a party for costs recovery purposes and examined the appropriate circumstances under which costs orders could be made between a tutor and a person under legal incapacity. The court also deliberated on the appropriateness of ordering indemnity costs when proceedings have been unnecessarily extended. Furthermore, the court examined the possibility of setting off costs awarded to the tutor against costs awarded when the tutor was acting on behalf of the incapacitated individual.

The court determined that the tutor could indeed be considered a party for the purposes of making costs orders. It found that costs could be awarded between the tutor and the person under legal incapacity. The court held that an order for indemnity costs was appropriate when proceedings have been unnecessarily prolonged. Additionally, the court ruled that costs awarded to the tutor could be set off against costs awarded when the tutor was representing the incapacitated person, provided that the costs were reasonably incurred and directly related to the proceedings. Consequently, the court made specific orders reflecting these determinations.

Orders