Twigg v Twigg (No 2)

Case •

[2019] NSWSC 1356

•

08 October 2019

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: Twigg v Twigg (No 2) [2019] NSWSC 1356
Hearing dates: 8 October 2019
Decision date: 08 October 2019
Jurisdiction:Equity - Commercial List
Before: Stevenson J
Decision:

Defendants restrained from enforcing interlocutory costs order until the conclusion of the proceedings

Catchwords: COSTS – party/party – costs orders in interlocutory proceedings – consent order that costs be assessable forthwith – whether order also payable forthwith
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: G&S Engineering Services Pty Ltd v MACH Energy Australia Pty Ltd (No 2) [2019] NSWSC 463
His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand v The Macedonian Orthodox Community Church St Petka Incorporated (No 2) [2007] NSWCA 142
Twigg v Twigg [2019] NSWSC 373
Texts Cited: Practice Note SC Eq 3
Category:Procedural and other rulings
Parties: Diane Twigg (First Plaintiff/Applicant)
Ipswich Landfill Pty Ltd as trustee for the Ipswich Landfill Trust (Second Plaintiff/Applicant)
Brooklyn Landfill & Waste Recycling Pty Ltd as trustee for the Brooklyn Landfill Trust (Third Plaintiff/Applicant)
Twigg Plant Hire Pty Ltd as trustee for the Twigg Family Trust (Fourth Plaintiff/Applicant)
Maxwell James Twigg (First Defendant/Respondent)
Twigg Landfill Pty Ltd (Second Defendant/Respondent)
Byron Bay Beach Hotel Properties Pty Ltd (Third Defendant/Respondent)
Twigg Consulting Pty Ltd (Fourth Defendant/Respondent)
B Bay H Pty Ltd (Fifth Defendant/Respondent)
Twigg Investments Pty Ltd (Sixth Defendant/Respondent)
Maly Holdings Pty Ltd (Seventh Defendant/Respondent)
Twigg Property Development Pty Ltd (Eighth Defendant/Respondent)
Twigg Motor Sport Pty Ltd (Ninth Defendant/Respondent)
Vision Motor Sport Pty Ltd (Tenth Defendant/Respondent)
Twigg Motor Racing Pty Ltd (Eleventh Defendant/Respondent)
Surf Street Holdings Pty Ltd (Twelfth Defendant)
W&E Twigg Pty Ltd (Thirteenth Defendant)
Representation:

Counsel:
M R Elliott SC with D K Smith (Plaintiffs/Applicants)
J C Giles SC with M Bersten (Defendants/Respondents)

  Solicitors:
Roberts and Partners Lawyers (Plaintiffs/Applicants)
O’Loughlin Westhoff (Defendants/Respondents)
File Number(s): SC 2019/71329

Judgment

  1. On 5 April 2019, I dismissed the plaintiffs’ application for a freezing order: Twigg v Twigg [2019] NSWSC 373. I shall use the same abbreviations here.

  2. At [106] of my judgment, I said I would hear submissions as to costs.

  3. The parties agreed the form of the costs order that should be made. On 11 April 2019, by consent, I made the following order in chambers:

“The plaintiffs are to pay the defendants’ costs of the notice of motion dated 8 March 2019 assessable forthwith.”

  1. Max and the other defendants contend that they are entitled to enforce that costs order forthwith, and have indicated their intention to proceed to enforcement.

  2. Diane and the Corporate Trustees contend that, by reason of Uniform Civil Procedure Rules 2005 (NSW) r 42.7(2), the costs that I have ordered “do not become payable until the conclusion of the proceedings” and, in those circumstances, by notice of motion filed on 2 September 2019 seek the following orders:

  1. that the defendants take no step to enforce any assessment of the costs order made by Stevenson J on 11 April 2019 until further order of the Court; and

  2. that the defendants take no step to register with any Court any certificate of determination issued by any cost assessor pursuant to the application for costs assessment filed 22 August 2019 with the Court until further order of the Court.

  1. During argument earlier today, I indicated that I proposed to make orders to the effect of those sought by Diane and the Corporate Trustees and to order that the defendants pay the plaintiffs’ costs of the notice of motion of 2 September 2019. These are my reasons for coming to that conclusion.

  2. UCPR r 42.7 provides:

(1)    Unless the court orders otherwise, the costs of any application or other step in any proceedings, including:

(a)    costs that are reserved, and

(b)    costs in respect of any such application or step in respect of which no order as to costs is made,

are to be paid and otherwise dealt with in the same way as the general costs of the proceedings.

(2)    Unless the court orders otherwise, costs referred to in subrule (1) do not become payable until the conclusion of the proceedings.

  1. Paragraph 57 of the Commercial List and Technology & Construction List Practice Note, Practice Note SC Eq 3, provides:

“Unless otherwise ordered, a party in whose favour an order for costs is made may proceed to assessment of such costs forthwith.”

  1. In order to displace the operation of UCPR r 42.7(2), it is necessary that there be “a specific order that costs be immediately enforceable”: His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand v The Macedonian Orthodox Community Church St Petka Incorporated (No 2) [2007] NSWCA 142 at [49].

  2. Thus, in this case, for the court to “otherwise order” for the purposes of UCPR r 42.7, it would have been necessary that the 11 April 2019 costs order read:

“The plaintiffs are to pay the defendants’ costs of the notice of motion dated 8 March 2019 assessable and payable forthwith.” (Emphasis added.)

  1. Mr Giles SC, who appeared with Mr Bersten for Max, submitted that the 11 April 2019 order should be construed as if the words “and payable” appeared in the order. Otherwise, Mr Giles submitted, the words “assessable forthwith” added nothing to do the defendants’ rights as, by reason of par 57 of the Practice Note, they were entitled to proceed to assessment in any event.

  2. That may be so.

  3. But that does not warrant reading into the order words that are not there.

  4. In G&S Engineering Services Pty Ltd v MACH Energy Australia Pty Ltd (No 2) [2019] NSWSC 463, I was dealing with an application which, in terms, sought an order that the costs of an interlocutory application be payable forthwith. I observed at [7] that, in light of par 57 of the Practice Note, there would in most, if not all cases, be little point in ordering that the costs the subject of an interlocutory costs order be assessed forthwith unless those costs were also to be payable forthwith.

  5. But that is what the parties agreed to here.

  6. As Mr Elliott SC, who appeared with Mr Smith for Diane and the Corporate Trustees submitted, it was open to the defendants to seek an order that costs be “payable forthwith”.

  7. They did not do so.

  8. There has been no “otherwise” order for the purpose of UCPR r 42.7. It follows that my costs order of 11 April 2019 does “not become payable until the conclusion of the proceedings”.

  9. Accordingly, I order that:

  1. The defendants take no step to enforce any assessment of the costs order made by me on 11 April 2019 until the conclusion of these proceedings or further order of the Court.

  2. The defendants take no step to register with any Court any certificate of determination issued by any cost assessor pursuant to the application for costs assessment filed 22 August 2019 with the Court until the conclusion of these proceedings or further order of the Court.

  3. The defendants pay the plaintiffs’ costs of the plaintiffs’ notice of motion of 2 September 2019.

**********

Decision last updated: 08 October 2019

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

1

Twigg v Twigg (No 6); Lambert v Twigg Investments Pty Ltd (No 5) [2020] NSWSC 1856