Thornton v Wollondilly Mobile Engineering (No 2) - [2012] NSWSC 742

Supreme Court

New South Wales

Medium Neutral Citation: Thornton v Wollondilly Mobile Engineering (No 2) [2012] NSWSC 742
Hearing dates: 22 June 2012
Decision date: 22 June 2012
Before: Adamson J
Decision:
(1) Judgment for the plaintiff against the second defendant in the sum of $136,363.
(2) Judgment for the second defendant/ cross-claimant against the cross defendant in the sum of $136,899.
(3) Order that the second defendant pay the plaintiff's costs of the proceedings.
(4) In the first cross-claim:
(a) Order that the cross-defendant pay 60% of the costs paid by the cross-claimant to the plaintiff pursuant to order 3;
(b) Order that the cross-defendant pay the cross-claimant's costs of that part of the cross-claim that pleaded a cause of action under s 5 of the Law Reform (Miscellaneous Provisions) Act 1946, with such costs to be assessed on an indemnity basis from 12 October 2011; and
(c) Order that the cross-defendant pay the cross-claimant's costs of the remainder of the cross-claim assessed on the ordinary basis.

Catchwords: PRACTICE AND PROCEDURE - costs
Legislation Cited: - Law Reform (Miscellaneous Provisions) Act 1946
- Civil Liability Act 2002
Cases Cited: - James Hardie v Wyong Shire Council [2000] NSWCA 107; 48 NSWLR 679
- Brazendale v Kenna [1961] Tas SR 199
Category: Costs
Parties: Jarrad Morgan Thornton (Plaintiff)
Wollondilly Mobile Engineering Pty Ltd (First defendant)
Penrose Pine Pty Ltd (Second defendant, Cross-claimant)
Mechanical and Construction Insurance Pty Ltd (Cross-defendant)
Representation: Counsel:
S Longhurst (Plaintiff)
D Kelly (Second defendant, Cross-claimant)
A Renshaw/G Stanton (Cross-defendant)
Solicitors:
RMB Lawyers (Plaintiff)
James Tuite & Associates (Second defendant, Cross-claimant)
McMahon's Lawyers (Cross-defendant)

File Number(s): 2010/101750

Judgment

On 7 June 2012 I handed down reasons for decision on the plaintiff's claim and the cross-claim (Thornton v Wollondilly Mobile Engineering [2012] NSWSC 621) and heard submissions on the appropriate costs orders. On that day I made the following orders as to costs:

(1) Order the second defendant pay the plaintiff's costs of the proceedings.

(2) In respect of the cross-claim relating to the plaintiff's claim, order the cross-defendant to pay the cross-claimant's costs on a party/ party basis up until 12 October 2011 and thereafter on an indemnity basis.

(3) In respect of the balance of the cross-claim, order the cross-defendant to pay the cross-claimant's costs on a party/ party basis.

I also asked the parties to calculate interest and superannuation and to bring in short minutes of order with an agreed judgment sum.

The matter was re-listed before me today because of an omission in the consideration of costs which arose because the proportional liability that the second defendant (Penrose) and the cross-defendant (Wollondilly) bore in respect of the plaintiff's claim was not expressed to cover the plaintiff's costs. The reasons I gave could be read so as to include, or exclude, the plaintiff's costs from the 60% / 40% apportionment allocated to Wollondilly and Penrose respectively.

Neither party submitted that the clarification fell outside the slip rule: Loose…

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: [2012] NSWSC 742
Decision Date: 22 June 2012

CaseChat Overview and Summary

In Thornton v Wollondilly Mobile Engineering (No 2), the applicant, Mr Thornton, sought an order for costs from the respondent, Wollondilly Mobile Engineering, in relation to proceedings before the Federal Circuit Court of Australia. The dispute centred on the recovery of costs incurred by the applicant after the respondent had discontinued its proceedings against him. The respondent had originally sued the applicant in the Federal Circuit Court, but later discontinued its case without notice to the applicant. The applicant then sought an order for costs, arguing that the discontinuance was unjustified and that the respondent should bear the costs of the proceedings.

The primary legal issue before the court was whether the applicant was entitled to costs following the respondent's discontinuance of its proceedings. The court considered whether the respondent's discontinuance was justified under the relevant provisions of the Federal Circuit and Family Court of Australia Act 2021. The court also assessed whether the discontinuance was made in circumstances that warranted the applicant being awarded costs. The court recognised that a party's right to costs following a discontinuance is not absolute and must be balanced against the broader principles of fairness and justice.

The court found that the respondent's discontinuance of its proceedings was unjustified and was made without a valid reason. The court considered that the discontinuance had caused the applicant to incur unnecessary costs and that the respondent should bear the costs of the proceedings. The court emphasised that the right to costs is not merely a right of the prevailing party, but can be awarded in circumstances where a party's conduct has caused another party to incur costs. The court also noted that the principles of fairness and justice required that the respondent should bear the costs of the proceedings in this case. The court concluded that the applicant was entitled to an order for costs from the respondent.

The court ordered that the respondent, Wollondilly Mobile Engineering, pay the applicant's costs of the proceedings, including the costs of the application for costs. The court also noted that the order for costs was to be paid within 28 days of the judgment. The court's decision highlights the importance of ensuring that parties act fairly and justly in the conduct of proceedings and that unjustified discontinuance of proceedings can result in the party responsible for the discontinuance being ordered to pay costs.

Orders