Tout v Johnson (No 2) - [2021] NSWSC 1543

Supreme Court

New South Wales

Medium Neutral Citation: Tout v Johnson (No 2) [2021] NSWSC 1543
Hearing dates: On the papers
Date of orders: 30 November 2021
Decision date: 30 November 2021
Jurisdiction: Equity
Before: Darke J
Decision:
See at [9] and [13].

Catchwords:
COSTS – departure from the general rule – where plaintiff unsuccessful in obtaining relief at final hearing – whether costs of various interlocutory applications warrant a departure from the general rule – held that some departure warranted – order that defendants pay certain costs and otherwise that the plaintiff pay the costs of the proceedings
COSTS – gross sum order – held the evidence does not establish likelihood that the plaintiff will be unable to pay defendants’ costs once assessed – held that evidence does not place Court in position to be confident it could resolve challenges about amount of costs on a fair and logical basis – gross sum costs order declined

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 98(4)(c)
Conveyancing Act 1919 (NSW), s 88K

Cases Cited:
Tout v Johnson [2021] NSWSC 1311

Category: Costs
Parties: Michelle Tout (Plaintiff)
Brendan Charles Johnson (First Defendant)
Jodie Gail Williams (Second Defendant)
The Office of the Registrar-General (Third Defendant)
Representation:
Counsel:
Mr A Joseph (Plaintiff)
Mr S Lipp (First and Second Defendants)
Solicitors:
Lindeman Lawyers (Plaintiff)
Downeys Lawyers Pty Ltd (First and Second Defendants)

File Number(s): 2019/375183
Publication restriction: None

Judgment

Judgment was given in this matter on 14 October 2021 (see Tout v Johnson [2021] NSWSC 1311 – “the principal judgment”). The Court rejected the plaintiff’s remaining claim for relief, being the imposition of an easement pursuant to s 88K of the Conveyancing Act 1919 (NSW). This judgment, which should be read in conjunction with the principal judgment, concerns the costs of the proceedings.
Subject to two exceptions, the plaintiff accepts that it is appropriate for costs to follow the event. The two exceptions are:

the costs of the plaintiff’s application for interlocutory relief made at the time the proceedings were commenced in November 2019; and

the costs of the various applications that were brought in April 2021 following the washing away of the access track at the creek crossing on the defendants’ land.

The plaintiff submits that she should obtain costs orders in her favour in relation to these matters, or alternatively that there should be no orders for costs in relation to them.
The defendants press for an order that the plaintiff pay their costs of the whole proceedings. In addition, the defendants seek a gross sum costs order pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW).
The question of costs has been dealt with on the papers. The plaintiff relied upon written submissions dated 22 October 2021 and 19 November 2021 (in reply), and an affidavit of Matthew Lindeman, solicitor, of 19 November 2021. The defendants relied upon written submissions dated 31 October 2021, and an affidavit of David Downey, solicitor, of 28 October 2021.
As for (1), 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 Tout v Johnson (No 2)

Details

AGLC: Tout v Johnson (No 2) [2021] NSWSC 1543
Case: [2021] NSWSC 1543
Decision Date: 30 November 2021

CaseChat Overview and Summary

The plaintiff, Tout, sought relief against the defendants, Johnson, in the Federal Court of Australia. The case involved a dispute over costs, specifically whether the defendants should be ordered to pay the costs of various interlocutory applications. The plaintiff had been unsuccessful in obtaining relief at the final hearing. The court was required to determine whether the defendants' costs of various interlocutory applications warranted a departure from the general rule that the unsuccessful party pays the costs of the successful party.

The court considered whether the evidence established a likelihood that the plaintiff would be unable to pay the defendants’ costs once assessed. The court also had to assess whether the evidence placed it in a position to be confident it could resolve challenges about the amount of costs on a fair and logical basis. The court held that the evidence did not establish the likelihood of the plaintiff being unable to pay the defendants’ costs, and it did not place the court in a position to be confident it could resolve challenges about the amount of costs on a fair and logical basis.

Accordingly, the court declined to make a gross sum costs order. Instead, the court ordered the defendants to pay certain costs and otherwise ordered that the plaintiff pay the costs of the proceedings. The court held that some departure from the general rule was warranted given the circumstances of the case. The decision highlights the court's discretion in ordering costs and the importance of evidence in making such orders.

Orders