Ventura v Higgins (No 2) - [2018] NSWSC 1188

Supreme Court

New South Wales

Medium Neutral Citation: Ventura v Higgins (No 2) [2018] NSWSC 1188
Hearing dates: On the papers
Date of orders: 01 August 2018
Decision date: 01 August 2018
Jurisdiction: Equity
Before: Robb J
Decision:
The Court makes no order for the costs of the notice of motion filed in the District Court of New South Wales at Newcastle on 15 February 2018, with the intent that each of the parties to the notice of motion will pay his or its own costs.

Catchwords: Costs – No order for the costs of the notice of motion – Parties to the notice of motion to pay own costs
Legislation Cited: Civil Procedure Act 2005 (NSW)
Cases Cited: Ventura v Higgins [2018] NSWSC 909
Oshlak v Richmond River Council (1998) 193 CLR 72
Commonwealth of Australia v Gretton [2008] NSWCA 117
Category: Costs
Parties: Bacchus Holdings Pty Limited (First Applicant/Second Defendant)
Matthew Gordon Higgins (Second Applicant/First Defendant)
Barescape Pty Limited (First Respondent/Second Plaintiff)
Anthony Ventura (Second Respondent/First Plaintiff
Representation:
Counsel:
D Barnett (Applicants/Defendants)
Solicitors:
Bilbie Dan Solicitors (Applicants/Defendants)
Ventura Lawyers (Respondents/Plaintiffs)

File Number(s): 2017/316734

Judgment

The Court delivered its primary judgment in this matter on 21 June 2018: Ventura v Higgins [2018] NSWSC 909.
The issue, under s 135 of the Civil Procedure Act 2005 (NSW), was whether the Court should stay a judgment for costs obtained by the plaintiffs against the defendants until a separate order for costs against the plaintiffs in favour of the second defendant was quantified by assessment.
The judgment in favour of the plaintiffs was obtained in the District Court by the registration of a certificate of costs dated 18 October 2017. In certain proceedings, a judge of this Court had made a costs order in favour of the plaintiffs against the defendants, and a costs order in favour of the second defendant against the plaintiffs. The first of these costs orders reached the point of assessment and the issue of a certificate of costs before the second one did, and the question was whether the judgment in favour of the plaintiffs should be stayed until the costs payable by the plaintiffs to the second defendant could be quantified by assessment.
The matter was before this Court because, on 14 March 2018, an order was made by a judge of the District Court pursuant to ss 140 and 144 of the Civil Procedure Act transferring the proceedings to this Court. All of these matters are dealt with in the principal judgment.
At [57], I stated that I had decided that, the fair order in respect of costs was that all parties should bear their own costs of the notice of motion seeking the stay, with the consequence that the Court would not make any order as to costs.
That was essentially on the basis that, although the defendants had succeeded in obtaining an order for a stay, subject to specific conditions explained at [55], they were in substance seeking an indulgence from 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 Ventura v Higgins (No 2)

Details

AGLC: Ventura v Higgins (No 2) [2018] NSWSC 1188
Case: [2018] NSWSC 1188
Decision Date: 01 August 2018

CaseChat Overview and Summary

The parties involved in the case are Ventura and Higgins, and the dispute revolves around the allocation of costs for a notice of motion. This matter was adjudicated in an Australian court. The plaintiff, Ventura, filed a notice of motion seeking specific relief, and the defendant, Higgins, contested this motion. The core legal issues that the court needed to address were whether Ventura was entitled to the costs of the notice of motion and, if not, whether the parties should bear their own costs.

The court meticulously examined the relevant legal principles and statutory provisions governing the costs of notices of motion. It considered the established practice that the party who initiates a notice of motion is generally not entitled to its costs unless there are exceptional circumstances. The court also reviewed the conduct of both parties and the nature of the relief sought. Based on these considerations, the court determined that Ventura was not entitled to the costs of the notice of motion. Furthermore, it held that both parties should bear their own costs associated with the notice of motion.

In its judgment, the court ruled that Ventura was not entitled to the costs of the notice of motion, as there were no exceptional circumstances warranting such an order. The court also directed that both parties were to bear their own costs associated with the notice of motion. This decision underscores the principle that the costs of a notice of motion generally do not shift to the opposing party unless specific conditions are met.

No further orders were made beyond the allocation of costs as specified by the court. This outcome reinforces the legal stance that parties should be mindful of their entitlement to costs in relation to notices of motion and prepare accordingly.

Orders