Walmsley v Blue Mountains Developers; Blue Mountains Developers v Harwood

[2010] NSWSC 730

CITATION:	Walmsley v Blue Mountains Developers; Blue Mountains Developers v Harwood [2010] NSWSC 730
HEARING DATE(S):	1 July 2010
JUDGMENT OF:	Gzell J
EX TEMPORE JUDGMENT DATE:	1 July 2010
DECISION:	Applications dismissed.
CATCHWORDS:	PROCEDURE - Costs - whether to order that interlocutory be payable forthwith - Uniform Civil Procedure Rules 2005, Pt 42 r 42.7(2)
LEGISLATION CITED:	Uniform Civil Procedure Rules 2005
CASES CITED:	Royal Australian Naval Reserve Rifle Club Inc v New South Wales Rifle Association Inc [2010] NSWSC 351
PARTIES:	John Ian Walmsley (First Plaintiff in 2009/288622) Links (Western) Industries Pty Ltd (Second Plaintiff in 2009/288622) Blue Mountains Developers Pty Ltd (First Defendant in 2009/288622; Plaintiff in 2009/288379) Neville John Harwood (Second Defendant in 2009/288622; Second Defendant in 2009/288379) Christina Margaret Harwood (Third Defendant in 2009/288622; First Defendant in 2009/288379)
FILE NUMBER(S):	SC 2009/288622; 2009/288379
COUNSEL:	A Hourigan (Plaintiffs in 2009/288622) K Morrissey (First Defendant in 2009/288622; Plaintiff in 2009/288379) J Drummond (Second and Third Defendants in 2009/288622; Defendants in 2009/288379)
SOLICITORS:	Wilsons Solicitors (Plaintiffs in 2009/288622) Coode and Corry (First Defendant in 2009/288622; Plaintiff in 2009/288379) Bateman Battersby Lawyers (Second and Third Defendants in 2009/288622; Defendants in 2009/288379)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

THURSDAY 1 JULY 2010

2009/288622 JOHN IAN WALMSLEY & ANOR V BLUE MOUNTAINS DEVELOPERS PTY LTD
2009/288379 BLUE MOUNTAINS DEVELOPERS PTY LTD v CHRISTINA MARGARET HARWOOD & ANOR

EX TEMPORE JUDGMENT

1 Three notices of motion in relation to these related proceedings were before the court.

2 With respect to the proceedings in which Mr Walmsley is one of the plaintiffs, the first notice of motion sought leave to file an amended statement of claim, an order that the solicitors for Mr and Mrs Harwood comply with a subpoena, and an order that those solicitors be restrained from acting for them in the substantive proceedings.

3 By the second notice of motion in those proceedings Mr and Mrs Harwood sought an order that a subpoena issued by the plaintiffs to their solicitors be set aside as an abuse of process.

4 In the related proceedings brought by Blue Mountains Developers Pty Ltd the notice of motion of Mr and Mrs Harwood sought to strike out portions of the amended statement of claim with orders for costs on an indemnity or party and party basis with an order that they be permitted to assess the costs.

5 The plaintiffs in each matter have agreed to pay Mr and Mrs Harwood's costs of all three notices of motion. The only question before me is a submission in their behalf that I order that those costs be paid forthwith.

6 The Uniform Civil Procedure Rules 2005 Pt 42 r 42.7(2) provides that:

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

Part 42 r 42.7(1) provides, in part, that unless the court orders otherwise, the costs of any application or other step in any proceedings are to be paid and otherwise dealt with in the same way as the general costs of the proceedings.

7 It has been said that Pt 42 r 42.7(2) is a general discretion that is unconfined. But the types of situation in which a party has been successful in obtaining an order under that provision are where the costs order is relevant to a discrete, separately identifiable aspect of proceedings; where there is some unreasonable conduct by the party against whom the costs order has been made; and where there is likely to be a fairly long time before the proceedings are disposed of (Royal Australian Naval Reserve Rifle Club Inc v New South Wales Rifle Association Inc [2010] NSWSC 351 at [19]).

8 I do not regard the notice of motion seeking leave to file an amended statement of claim as falling within any of those categories. If it is considered a discrete, separately identifiable aspect of the proceedings because specific amendments are sought, successfully or unsuccessfully, it would mean that on any occasion that an application is made to the court for leave to amend a pleading, the costs to be paid by the unsuccessful party would, as a matter of course, be ordered to be paid forthwith. I do not think that the rule was intended to have such an operation.

9 Nor do I regard an order that the solicitors for Mr and Mrs Harwood comply with a subpoena as falling within the above categories. That, again, is an ordinary interlocutory matter arising in the litigation that could hardly justify the exercise of the discretion to order the unsuccessful party to pay the costs forthwith.

10 The application for Mr and Mrs Harwood's solicitors to be restrained from acting for them falls into a different category. It is an unusual application that, if it stood alone, might justify the application of the discretion in question. But it was but one part of the notice of motion, the other portions of which, as I have indicated, would not give rise to the court exercising its discretion in favour of immediate payment.

11 Similar remarks can be made with respect to the two other notices of motion. The one seeking an order that the subpoena issued by the plaintiffs be set aside as an abuse of process while potentially falling within the category of cases where there is some unreasonable conduct by the party against whom the costs order has been made, is not in this case, in my view, sufficient cause to give rise to the exercise of the discretion in favour of an immediate payment of costs. It is a defensive process following the issue of the subpoena.

12 The final notice of motion to strike out portions of the amended statement of claim and for orders for costs on an indemnity or party and party basis falls within the category of a usual application in the course of litigation and, for the reasons I have expressed, would not convince me to exercise my discretion in favour of Mr and Mrs Harwood.

13 The applications are refused.

**********