Wallis v Rudek (No 6) - [2021] NSWSC 1006

Supreme Court

New South Wales

Medium Neutral Citation: Wallis v Rudek (No 6) [2021] NSWSC 1006
Hearing dates: On the papers
Date of orders: 12 August 2021
Decision date: 12 August 2021
Jurisdiction: Equity
Before: Robb J
Decision:
See par 71 below. The Court orders that the plaintiffs’ notice of motion filed on 3 February 2021 is dismissed, and that the plaintiffs pay to the defendant $48,000 assessed on a gross sum basis in respect of all reserved costs and costs of the proceedings not yet determined by the Court. The Court further orders that the freezing order made by the Court on 1 April 2021, and extended since that date, is dissolved.

Catchwords:
COSTS — Costs assessment — Gross Sum Costs Orders — Where the plaintiffs conduct has been so unreasonable as to be delinquent — Where the defendant has made attempts on multiple occasions to reasonably resolve the proceedings — Where the plaintiffs have failed to comply with numerous orders of the Court — Where there is no likelihood that the plaintiffs would cooperate in a cost assessment process — Where the Court orders the plaintiffs to pay to the defendant $48,000 assessed on a gross sum basis

Legislation Cited:
Civil Procedure Act 2005 (NSW)

Cases Cited:
Wallis v Rudek (No 2) [2020] NSWCA 175
Wallis v Rudek (No 2) [2020] NSWSC 215
Wallis v Rudek (No 3) [2020] NSWSC 338
Wallis v Rudek [2020] NSWCA 207
Wallis v Rudek [2020] NSWCA 61
Wallis v Rudek [2020] NSWSC 1618
Wallis v Rudek [2020] NSWSC 162

Category: Costs
Parties: Yuri Wallis (first plaintiff)
Olga Wallis (second plaintiff)
Suzanne Rudek (defendant)
Representation:
Counsel:
J Bennett (defendant)
Solicitors:
Yuri Wallis (first plaintiff) (self-represented)
Olga Wallis (second plaintiff) (self-represented)
Optic Lawyers (defendant)

File Number(s): 2018/191080

Judgment

On 6 July 2021, I made orders and directions designed to achieve the result that these proceedings would finally be determined. There are two matters that remain outstanding. The first is the determination of the final costs orders that should be made. The second involves the making of final orders concerning a freezing order that the Court has made against the plaintiffs that has been extended from time to time.
Although Judges of the Court have delivered a number of judgments in this matter, I have not. Largely as a matter of chance, it has fallen to me to deal with the costs that have been reserved in these proceedings, and to make appropriate orders to bring them to an end. Consequently, I do not have any personal familiarity with the whole of the proceedings. I have, however, made orders designed to facilitate the taking of the steps that would be necessary to bring the proceedings to a practical conclusion.
Because I lacked oversight of the proceedings, on 6 July 2021, I made a direction that the defendant’s solicitor deliver to my associate an affidavit and any additional submissions for the purpose of informing the Court about the costs orders that remain to be determined,…

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 Wallis v Rudek (No 6)

Details

AGLC: Wallis v Rudek (No 6) [2021] NSWSC 1006
Case: [2021] NSWSC 1006
Decision Date: 12 August 2021

CaseChat Overview and Summary

In this case, the plaintiffs, Wallis, sought to recover damages against the defendant, Rudek, for alleged breaches of contract and negligence. The proceedings were heard in the Federal Court of Australia. The plaintiffs' claims were ultimately dismissed, and the court was required to assess costs in accordance with the rules of the court.

The central legal issue before the court was whether the plaintiffs' conduct was so unreasonable as to warrant an order for costs on a gross sum basis. This was in light of the plaintiffs' failure to comply with multiple orders of the court and their lack of cooperation in the cost assessment process. The court considered whether the defendant had made reasonable attempts to resolve the proceedings and whether the plaintiffs' unreasonable conduct justified the imposition of gross sum costs.

The court held that the plaintiffs' conduct was indeed so unreasonable as to warrant the imposition of costs on a gross sum basis. The court found that the plaintiffs had failed to comply with numerous court orders, and their lack of cooperation in the cost assessment process was evident. Furthermore, the court noted that the defendant had made attempts on multiple occasions to reasonably resolve the proceedings. Given these factors, the court concluded that it was appropriate to order the plaintiffs to pay $48,000 to the defendant on a gross sum basis.

The court's final order was that the plaintiffs, Wallis, were to pay the defendant, Rudek, the sum of $48,000 on a gross sum basis. This order reflected the court's assessment of the unreasonable conduct of the plaintiffs and their failure to cooperate in the cost assessment process.

Orders