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Uber BV v Howarth (No. 2)

Uber BV v Howarth (No. 2)

Case [2017] NSWSC 889 4 July 2017

Costs

Compensatory Damages

Limitation Periods

Civil Litigation & Procedure

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Uber BV & Anor v Howarth (No. 2) [2017] NSWSC 889
Hearing dates: 31 May, 4 July 2017
Date of orders: 04 July 2017
Decision date: 04 July 2017
Jurisdiction: Equity
Before: Slattery J
Decision:
Specified gross sum of $391,152.27 awarded instead of assessed costs.

Catchwords: COSTS - specified gross sum instead of assessed costs – Civil Procedure Act s98(4)(c) – plaintiffs successful in contested proceedings for a mandatory injunction to restrain the commission of the tort of intimidation – defendant an undischarged bankrupt – defendant unlikely to be able to satisfy any order for costs of a costs assessment – whether a specified gross sum order should be made instead of an award of assessed costs – if so, what is the appropriate amount of such a specified gross sum - whether $391,152.27, which is approximately 60% of the costs the plaintiffs have incurred should be awarded instead of assessed costs – history of jurisdiction to make specified gross sum orders instead of assessed costs.
Legislation Cited: Civil Procedure Act 2005 s 98(4)(c)
Passenger Transport Amendment (Taxis and Hire Cars) Regulation 2015
Supreme Court Rules 1970
Cases Cited: Australasian Performing Rights Assoc Ltd v Marlin [1999] FCA 1006
Beach Petroleum NL v Johnson (No. 2) (1995) 57 FCR 119
Edgar & Walker v Mead (1916) 23 CLR 29
Hadid v Lenfest Communications Inc [2000] FCA 628
Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213
Silva v Czarnikow Limited (1960) 104 SJ 369
Simone Starr-Diamond v Talus Diamond (No. 4) [2013] NSWSC 811
Uber BV & Anor v Howarth [2017] NSWSC 54
Willmott v Barber (1881) 17 Ch D 772
Category: Costs
Parties: First Plaintiff: Uber BV
Second Plaintiff: Uber Australia Pty Ltd
Defendant: Russell Howarth
Representation:
Counsel:

Plaintiffs: S. A. Lawrance

Solicitor:
Plaintiffs: Nicholas Hanna, Hanna Legal
Defendant: n/a

File Number(s): 2015/192725
Publication restriction: No

EX TEMPORE Judgment

This is the Court’s second judgment in these proceedings. In the Court's first judgment, given on 3 April 2017 after a hearing on 6 and 7 February 2017, the Court granted a permanent injunction restraining the defendant from engaging in the tort of intimidation, and specifically from intimidating or attempting to intimidate, arresting or attempting to arrest the plaintiffs or their officers, employees or agents or arresting or attempting to arrest users of the Uber App or otherwise harassing such persons or causing or inciting other persons to engage in such conduct and: Uber BV & Anor v Howarth [2017] NSWSC 54.
Order 3 of the orders made with the first judgment required the defendant to pay the plaintiffs' costs of the proceedings. But that order was stayed for a period of 28 days to allow the parties to file any motions to seek a different costs order.
On 27 April 2017 the plaintiffs filed a motion seeking orders pursuant to Civil Procedure Act 2005 s 98(4)(c) that the defendant pay to the plaintiffs a specified gross…

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 Uber BV v Howarth (No. 2)

Details

AGLC: Uber BV v Howarth (No. 2) [2017] NSWSC 889
Case: [2017] NSWSC 889
Decision Date: 04 July 2017

CaseChat Overview and Summary

Uber BV has commenced proceedings against Howarth in the Federal Court of Australia. The plaintiff seeks to restrain the defendant from committing the tort of intimidation. The plaintiff was successful in obtaining a mandatory injunction against the defendant. The defendant is an undischarged bankrupt and unlikely to be able to satisfy any order for the costs of the proceedings. The court must determine whether to make a specified gross sum order instead of an award of assessed costs and, if so, what the appropriate amount of such a specified gross sum should be. The plaintiff contends that $391,152.27, which is approximately 60% of the costs incurred, should be awarded instead of assessed costs.

The court was required to consider the relevant legislation, particularly section 98(4)(c) of the Civil Procedure Act 2005 (Cth). The court also had to consider the history of the jurisdiction to make specified gross sum orders instead of assessed costs. The court considered the principles of costs in contested proceedings and the appropriate approach to determining the amount of a specified gross sum order. The court also had to consider the nature of the proceedings, the success of the plaintiff, and the financial position of the defendant.

The court held that it had the jurisdiction to make a specified gross sum order instead of an award of assessed costs. The court held that the appropriate amount of such a specified gross sum should be $391,152.27, which is approximately 60% of the costs incurred by the plaintiff. The court considered the principles of costs in contested proceedings, the success of the plaintiff, and the financial position of the defendant. The court held that the defendant was unlikely to be able to satisfy any order for the costs of the proceedings and that it was appropriate to make a specified gross sum order instead of an award of assessed costs.

The court made a specified gross sum order in the amount of $391,152.27 instead of an award of assessed costs. The court held that this amount was appropriate given the principles of costs in contested proceedings, the success of the plaintiff, and the financial position of the defendant. The court also held that it had the jurisdiction to make such an order under section 98(4)(c) of the Civil Procedure Act 2005 (Cth).

Orders