Watson Wyatt Superannuation Pty Ltd v Oberlechner & 2 ors (Costs)

[2008] NSWSC 429

CITATION:	Watson Wyatt Superannuation Pty Ltd v Oberlechner & 2 ors (Costs) [2008] NSWSC 429
HEARING DATE(S):	31 March 2008
JURISDICTION:	Equity Division Expedition List
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	31 March 2008
DECISION:	First cross-claim dismissed. Third defendant pay 70 per cent, second defendant 20 per cent and first defendant pay 10 per cent of plaintiff's costs of proceedings, excluding the second cross-claim.
CATCHWORDS:	COSTS – interpleader proceedings – interpleader acting reasonably entitled to costs – apportionment of liability between claimants having regard to relative success and responsibility.
CATEGORY:	Consequential orders
PARTIES:	Watson Wyatt Superannuation Pty Ltd (plaintiff) Alfredo Oberlechner (first defendant/cross defendant) Herbert Weller (second defendant) First Mortgage Managed Investments Pty Ltd (second cross claimant/third defendant)
FILE NUMBER(S):	SC 5880/07
COUNSEL:	Mr A M Colefax SC (plaintiff) Mr Weller (first defendant/cross defendant & second defendant) Mr M J Cohen (third defendant/second cross claimant)
SOLICITORS:	Hunt & Hunt (plaintiff) Herbert Weller, Solicitor (first defendant/cross defendant & second defendant) Gadens Lawyers (second cross claimant/third defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EXPEDITION LIST

BRERETON J

Monday 31 March 2008

5880/07 Watson Wyatt Superannuation Pty Ltd v Alfredo Oberlechner & 2 Ors

JUDGMENT (ex tempore)

1 HIS HONOUR: On 28 February 2008 I gave judgment in these proceedings and ordered that the second cross-claim (brought by the third defendant First Mortgage Management Investments Pty Limited against the first defendant Mr Oberlechner) be dismissed, and that First Mortgage pay Mr Oberlechner's costs of that cross-claim. There remains outstanding for determination the question of costs of the proceedings other than the second cross-claim.

2 A first cross-claim, filed in summary form by Mr Oberlechner against First Mortgage, was not pressed and, indeed, when an attempt was made to file it in pleaded form at the outset of the hearing, leave was opposed and not pursued. Accordingly, to the extent that it is necessary to do so, I will order that the first cross-claim be dismissed.

3 The proceedings were instituted by the plaintiff Watson Wyatt Superannuation Pty Ltd as trustee of the superannuation fund, in circumstances where there were multiple claims on a fund of $339,360 which it received from the insurer. The initial claim was made by First Mortgage: at first for $50,000, then increasing to $70,000 and then ultimately said to extend to the whole of the fund. The second defendant Mr Weller, Mr Oberlechner's solicitor, also notified a claim on the fund in respect of his outstanding costs, either pursuant to a lien, or as a result of a charge purportedly given to him by Mr Oberlechner. Certain steps have been taken since my principal judgment was delivered which, without saying any more at this stage, might attract comment – either in light of the injunction originally granted by Hulme J, which it was noted in my previous judgment (at [9]) apparently remained on foot, and/or in the manner in which the effect of my judgment has been represented to Watson Wyatt. There may, of course, be perfectly good explanations for these matters, and I have not called for any such explanation to be given at this stage. But it seems to me that whatever might be their consequences, those events, which have happened after judgment, cannot bear on the costs of the proceedings up to and including judgment.

4 It seems to me, and no party seriously submitted otherwise, that it was reasonable if not necessary for the plaintiff to commence interpleader proceedings. In those circumstances, it is difficult if not impossible to see why it should be out of pocket for having done so. The only matter which might be put against that position is that the plaintiff's claim in paragraph 2 of the summons – in which it sought to have paid out of the fund the costs of the proceedings before Hamilton J – was abandoned; but, as it seems to me, that claim added nothing to the costs of the proceedings generally. Accordingly Watson Wyatt should recover its costs. The liability should be apportioned between the claimants having regard to their relative success in and responsibility for the litigation.

5 Mr Oberlechner’s first cross-claim was abandoned and dismissed. He resisted the second cross-claim brought by First Mortgage and ultimately did so successfully, but he did initiate a number of interlocutory applications which increased the costs of the proceedings. However, one must bear in mind that it was he who pressed a case of urgency and reasonably sought and obtained expedition, and in circumstances where he obtained a substantial measure of success the costs of expedition ought to be regarded as reasonably incurred by him. But he did not obtain by any means total success: he did not obtain an order for payment out in his favour, but merely a determination that First Mortgage was not entitled.

6 Mr Weller's claim, as I have said, was compromised; but its pendency must bear some, although a relatively minor part, of the responsibility for the proceedings. The most significant contribution to responsibility for the proceedings I think has to be seen to be that of First Mortgage, which made the first claim – from which time the proceedings were practically inevitable and which claim, as Mr A M Colefax SC has pointed out, increased from time to time, and ultimately failed.

7 In this rough assessment of responsibility for the costs of the proceedings, I exclude the costs of the second cross-claim, which have been dealt with separately. It seems to me that in respect of the balance of proceedings, as best one can apportion responsibility in a case like this, the responsibility falls something like 10 per cent to Mr Oberlechner, 20 per cent to Mr Weller and 70 per cent to First Mortgage.

8 My orders are:

1. Order that the first cross-claim be dismissed.

2. Order that the third defendant First Mortgage pay 70 per cent of the plaintiff's costs of the proceedings excluding the second cross-claim.

3. Order that the second defendant Mr Weller pay 20 per cent of the plaintiff's costs of the proceedings excluding the second cross-claim.

4. Order that the first defendant Mr Oberlechner pay 10 per cent of the plaintiff's costs of the proceedings, excluding the second cross-claim.

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