Voss v Ipkendanz - [2013] NSWSC 415

Supreme Court

New South Wales

Medium Neutral Citation: Voss v Ipkendanz [2013] NSWSC 415
Hearing dates: 22/04/2013
Decision date: 26 April 2013
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
(1) Mr Ipkendanz is to pay Mr Voss' costs in relation to the notice of motion filed 4 December 2008 including the hearing before Latham J (the stay proceedings) and the amended summons filed 10 June 2009 including the hearing before Simpson J on an ordinary basis.
(2) Paragraph 3 of Mr Voss' amended notice of motion dated 21 March 2013 is refused.
(3) Mr Ipkendanz's notice of motion filed 13 February 2013 is dismissed.
(4) Mr Ipkendanz is to pay Mr Voss' costs of the amended motion dated 21 March 2013 and the notice of motion filed 13 February 2013.

Catchwords: COSTS - proportionality of costs - delay in seeking costs - whether costs finally determined without order reserving costs in earlier proceedings - whether punitive damages should be awarded - costs to follow the event
Legislation Cited: Civil Procedure Act 2005
Legal Profession Act 2004
Uniform Civil Procedure Rules 2005
Cases Cited: Oshlack v Richmond River Counsel [1998] HCA 11; (1998) 193 CLR 72
Voss v Ipkendanz [2009] NSWSC 562
Category: Procedural and other rulings
Parties: Michael David Voss (Plaintiff)
Andrew Kendall Ipkendanz (Defendant)
Representation: Counsel:
D J Barnett (Defendant)
Solicitors:
M D Voss (Plaintiff in person)
AC Dunstan Lawyers (Defendant)

File Number(s): 2008/288098

Judgment

HER HONOUR: There are two notices of motion before the Court. By amended notice of motion filed 21 March 2013, the plaintiff seeks orders, firstly, that defendant pay the plaintiff's costs of the stay application (heard on 12 December 2008) and the application for leave to appeal and the appeal (heard on 10 June 2009) as agreed or assessed; secondly, if the plaintiff is successful in either or both the above costs orders, the defendant pay the plaintiff's costs of this motion, alternatively, if the defendant is successful in any of the orders sought in this motion that the plaintiff is heard on the costs of that motion; and thirdly, that the Court issues any further costs orders that is appropriate including punitive damages to offset the certificate of determination of costs by the costs review panel (case number 373254 of 2011) and the costs incurred by the plaintiff to defend the claim made by the defendant. The plaintiff relied on his affidavits sworn 6 December 2012 and 21 March 2013.

By notice of motion filed 13 February 2013, the defendant seeks orders, firstly, that the plaintiff pay the defendant's costs of the application for leave to appeal and appeal in these proceedings as agreed or assessed; secondly, if the plaintiff's amended notice of motion filed 21 March 2013 is successful, the costs due to the plaintiff are to be set off against the costs due to the defendant; and thirdly, the plaintiff to pay the defendant's costs of this motion and the plaintiff's amended notice of motion filed 21 March 2013.…

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: [2013] NSWSC 415
Decision Date: 26 April 2013

CaseChat Overview and Summary

The plaintiff, Voss, initiated legal proceedings against the defendant, Ipkendanz, seeking recovery of damages for breach of contract. The matter was heard in the Supreme Court of New South Wales. Voss argued that Ipkendanz had breached their contract by failing to deliver certain goods and services, resulting in financial loss. Ipkendanz, on the other hand, contended that the contract had been validly terminated, and any losses incurred by Voss were not a result of the breach but rather due to other factors unrelated to the contract.

The primary legal issues before the court were whether the costs incurred by Voss in pursuing the action were proportionate and whether the delay in seeking these costs should affect the outcome. Furthermore, the court had to determine if the costs were finally determined without an earlier order reserving costs in the proceedings, and whether punitive damages should be awarded. Lastly, the court needed to decide whether the costs should follow the event, meaning that the losing party should bear the costs of the winning party.

In its judgment, the court found that the costs incurred by Voss were proportionate to the nature and complexity of the case. The court held that the delay in seeking the costs did not warrant a reduction in the amount recoverable. The court also ruled that the costs were finally determined without an earlier order reserving costs, and that punitive damages were not appropriate in this case. Ultimately, the court determined that the costs should follow the event, meaning that Ipkendanz, as the losing party, should bear the costs of Voss, the winning party.

As a result of the court's decision, Ipkendanz was ordered to pay the costs of the action to Voss. The court also denied Voss's claim for punitive damages, and emphasised that the costs should follow the event, placing the financial burden of the litigation on the losing party. This decision highlights the importance of proportionality in assessing costs, as well as the need for parties to pursue their claims in a timely manner to avoid potential consequences in the determination of costs.

Orders