Surana v ANZ Banking Group Limited

[2014] NSWCA 10

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Surana v ANZ Banking Group Limited [2014] NSWCA 10

Hearing dates:

3 February 2014

Decision date:

03 February 2014

Before:

Beazley P;
Emmett JA

Decision:

Summons for leave to appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

COSTS - discontinuance of proceedings - discontinuing party to pay costs unless court orders otherwise - UCPR, r 42.19

Legislation Cited:

Uniform Civil Procedure Rules 2005

Category:

Principal judgment

Parties:

Shripat Surana (First Applicant)
Savita Surana (Second Applicant)
ANZ Banking Group Limited (Respondent)

Representation:

Counsel:
R G Christie (Solicitor) (Applicants)
S B Docker (Respondent)
Solicitors:
Kemp Strang Lawyers (Respondent)

File Number(s):

2013/188375

 Decision under appeal 

Jurisdiction:

9111

Citation:

Australian & New Zealand Banking Group v RQA Accountants Pty Ltd [2013] NSWSC 165;
Australia and New Zealand Banking Group Limited v RQA Accountants Pty Limited [2013] NSWSC 985

Before:

Adamson J;
Adams J

File Number(s):

2012/226249

Judgment

1. THE COURT: There was listed before the Court today a summons seeking leave to appeal from three orders made by judges of the court in the Common Law Division: two orders made by Adamson J and one order made by Adams J, the latter order refusing an application for a stay of the possession order that had been made by Adamson J. Adamson J had also struck out the defence of the applicants and of RQA Accountants Pty Ltd to a statement of claim brought by ANZ Banking Group Limited, the respondent to the summons seeking leave to appeal.

1. When the matter was called on for hearing, Mr Christie, solicitor, announced his appearance on behalf of the applicants. Mr Docker appeared on behalf of the respondent. Mr Christie informed the Court that his clients wished to discontinue the summons and that that was the subject of an agreement with counsel for the respondent but that they had not been able to reach agreement on the question of costs. Mr Christie informed the Court that his clients sought relief from what he understood would be the usual order for costs, that a discontinuing party pay the costs of the other party.

1. The Uniform Civil Procedure Rules 2005 (UCPR), Pt 12, governs the discontinuance of proceedings. It provides, in brief, that proceedings may be discontinued with the consent of each active party in the proceedings or with the leave of the court. As indicated, the respondent consents to the discontinuance. UCPR, Pt 42, r 42.19 provides, relevantly, that:

"Unless the Court orders otherwise, the plaintiff must pay such of the defendant's cost as at the date on which the notice of continuance was filed, had been incurred by the defendant in relation to each claim in respect of which the proceedings have been discontinued."

1. The rules referred to are cast in terms of the discontinuance of proceedings at first instance. To the extent that those rules apply either directly or by analogy to discontinuance in this Court, a reference to the plaintiff would be a reference to the applicant and a reference to the defendant would be a reference to the respondent: see UCPR, r 51.1. The matter has, in effect, proceeded on that basis.

1. Mr Christie, who informed the Court that he has been acting for the applicant on a pro bono basis, fairly put to the Court those matters in respect of which he had instructions as to why the applicants ought not to be subject to an adverse costs order. He did so most properly. The principal points that he has advanced may be summarised as being threefold.

1. The first was that the first applicant, in particular, has had what the Court understands was a bad psychological reaction to the financial circumstances that have befallen him and the accounting practice conducted by the applicants after a robbery at their business premises and the failure of an insurance company to fully meet their claim.

1. The second matter is that as a result of that reaction and his bad financial circumstances he is in a particularly disadvantaged position given that he has, inter alia, aged parents for whom he continues to be responsible and his family, including two children, to support.

1. The third matter related significantly to the applicants' background. Mr Christie informed the Court that the first applicant comes from India and we would understand that his wife is also of an Indian background. It was pointed out that whilst they are now in this disadvantaged financial position, the respondent is a large financial corporation, has been doing very well financially. It was also submitted that as a matter of proper relationships between the various countries including India, Singapore and Australia, no order should be made insofar as costs are concerned.

1. Mr Christie also informed the Court that the applicants have had the advantage of pro bono legal advice, including from two senior counsel, that the applicants have now seen appropriate to accept. Although they have accepted that advice, they still make an application to the Court to be given some reprieve from costs. They ask that an order for costs not be made against them. As indicated, Mr Christie outlined these matters fully and appropriately to the Court.

1. Mr Christie also made available to the Court three pages of email correspondence between himself and the first applicant, which were marked Exhibit A.

1. Notwithstanding the disadvantageous position the applicants have found themselves in, no reason has been advanced as to why they should not be liable for the costs of the respondent whom they have brought to the Court. In reaching that view, the Court, in its normal preparation of the matter for the hearing of the summons for leave to appeal, had read all of the documentation in the matter and had come to a preliminary view, which would have been subject to any argument that was put forward, that the prospects of success on the summons were minimal at the best. It would seem that the decision taken to discontinue reflects an acceptance of that position and no argument as to the strength or success on the summons was advanced, and again we would say, appropriately so.

1. In all of those circumstances the Court proposes to reject the application made on behalf of the applicants and formally makes the following order:

The summons for leave to appeal is dismissed with costs.

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Decision last updated: 07 February 2014