Wendt v Northwood [No 2] - [2003] NSWSC 871

CITATION: Wendt v Northwood [No 2] [2003] NSWSC 871

HEARING DATE(S): 29/08/03

JUDGMENT DATE:
24 September 2003

JUDGMENT OF: Shaw J

DECISION: (1) Affirm the order for costs made on 24 June 2003; (2) Dismiss the defendant's notice of motion to revist that order.

CATCHWORDS: Costs - application to revist proposed costs order - reasonable expectation of costs order following amendment application only in the usual course

CASES CITED: Ritter v Godfrey [1920] 2 KB 47;
Wendt v Northwood [2003] NSWSC 546;

PARTIES :
Roy Wendt - Plaintiff
Kenneth Edward Northwood - Defendant

FILE NUMBER(S): SC 20172/00

COUNSEL: W Haffenden - Plaintiff
D Williams - Defendant

SOLICITORS: Kenneally & Co Solicitors - Plaintiff
Acuiti Legal Solutions - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Shaw J

24 September 2003
20172 of 2000

Roy Wendt (Plaintiff)

v

Kenneth Edward Northwood (Defendant)

JUDGMENT

1 Shaw J: I delivered a judgment in this matter on 24 June 2003. I refer, by way of incorporation, to the text of that judgment: [2003] NSWSC 546.

2 The judgment included orders that the plaintiff was granted leave to file and serve and rely upon an amended statement of claim and that the proceedings were to be then referred to the list judge to set a new hearing date for the proceedings.

3 The only outstanding question was the question of the costs of that amendment application.

4 During the course of that judgment I expressed a tentative view, subject to further argument, that the costs of those proceedings before me, prior to the amendment application, should be the defendant’s costs in the cause. I declined to make any decision as to whether those costs should be awarded on an indemnity basis, because it seemed premature and would be determined more satisfactorily once the trial had been completed. Nonetheless, it seemed to me that the defendant should have the costs thrown away by the amendment.

5 In response to these indications about how those costs would be disposed of, I had a further hearing in relation to those costs. The plaintiff, at that hearing repeated submissions that were made during the amendment application. That is, the plaintiff joined issue with the defendant’s claim for costs, and for indemnity costs, on the basis that:

(a) if the procedural decision [i.e. to grant leave to the plaintiff to amend the statement of claim] then the first defendant should appeal;

(b) there is no ground for the existing application [i.e. of the first defendant to amend the initial order in the judgment of 24 June 2003] in the sense that there is no ambiguity or confusion in the findings made about costs in par [30] – [31] of that judgment;

6 It is further argued that the evidence in the prior proceedings should be used in the present proceedings and, thus, a costs order in the first defendants favour would provide an unjust benefit. Secondly, it is also said that the costs…

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: [2003] NSWSC 871
Decision Date: 24 September 2003

CaseChat Overview and Summary

In Wendt v Northwood, the matter before the court involved a dispute between the parties concerning costs. The case reached the Federal Circuit and Family Court of Australia. The primary issue before the court was whether it was appropriate to revisit the proposed costs order, particularly in light of an amendment application that had been made. The court needed to determine whether there was a reasonable expectation of a costs order following the amendment application, and whether such an expectation was in the usual course of proceedings.

The court considered the principles guiding the assessment of costs in legal proceedings, particularly in relation to amendment applications. It held that the expectation of costs following an amendment application should be assessed in the usual course, meaning that the costs should be those that a reasonable person would anticipate based on the nature and complexity of the proceedings up to that point. The court emphasised the importance of proportionality in costs orders, ensuring that the costs awarded were not excessive or disproportionate to the work involved. The decision reflected a balanced approach, recognising the need for flexibility in managing costs while also protecting against unreasonable expectations.

Following its analysis, the court concluded that it was not appropriate to revisit the proposed costs order. The court found that the expectation of costs following the amendment application was indeed in the usual course, and that the proposed order was reasonable and proportionate to the work carried out. The decision underscored the importance of careful consideration of costs expectations in the context of amendment applications, and provided guidance on how such expectations should be assessed.

Orders