White v Attwells (No 2) - [2020] NSWSC 1837

Supreme Court

New South Wales

Medium Neutral Citation: White v Attwells (No 2) [2020] NSWSC 1837
Hearing dates: On the papers
Decision date: 16 December 2020
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1) Subject to order (2) below, confirm that, in accordance with Uniform Civil Procedure Rules 2005 (NSW), r 42.19, the plaintiff must pay such of the defendant’s costs as, at 20 November (being the date on which the statement of claim was discontinued by the plaintiff), had been incurred by the defendant in relation to the claims in the statement of claim.
(2) Order that the costs of the plaintiff’s notice of motion filed 31 March 2020, the costs of the defendant’s amended notice of motion filed 30 March 2020 and the costs of the cross-claim be excluded from order (1) above.
(3) In respect of the plaintiff’s notice of motion filed 31 March 2020 and the defendant’s amended notice of motion filed 30 March 2020, order the plaintiff to pay half the defendant’s costs of the motions.

Catchwords:
COSTS — Party/Party — Where one party successful — Where successful party prolonged proceedings — Whether costs awarded to successful party ought be discounted
COSTS — Party/Party — Where proceedings discontinued by plaintiff — Where discontinuance not a result of settlement — Whether plaintiff ought pay costs of defendant

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 56, 98
Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 42.19

Cases Cited:
White v Attwells [2020] NSWSC 1520
Re Minister for Immigration and Ethnic Affairs; Ex Parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6
Australiawide Airlines Ltd v Aspirion Pty Ltd [2006] NSWCA 365
One.Tel Ltd v Deputy Commissioner of Taxation (2000) 101 FCR 548; [2000] FCA 270

Category: Costs
Parties: Gary Alan White (Plaintiff / Cross-defendant)
Noel Bruce Attwells (Defendant / Cross-claimant)
Representation:
Counsel:
J K Raftery (Plaintiff / Cross-defendant)
R D Newell (Defendant/Cross-claimant)
Solicitors:
Not applicable (Plaintiff / Cross-defendant)
L C Muriniti & Associates (Defendant / Cross-claimant)

File Number(s): 2017/239938

Judgment

Introduction

On 28 and 29 October 2020 I heard the notice of motion filed by the plaintiff, Gary White, on 31 March 2020, and an amended notice of motion filed by Noel Attwells, the defendant, on 30 March 2020. On 30 October 2020 I made orders dismissing the plaintiff’s notice of motion and declaring that the parties have not entered into a binding agreement to settle the proceedings: White v Attwells [2020] NSWSC 1520 (the principal judgment). I ordered that the plaintiff pay the defendant’s costs unless an application for a different order was made. Such an application was made within the period specified in the order.
I have been provided with the following written submissions on costs:

Mr White’s submissions dated 27 November 2020;

Mr Attwells’ submissions dated 27 November 2020;

Mr White’s submissions in response dated 4 December 2020;

Mr Attwells’ submissions in response dated 8 December 2020; and

Mr White’s submissions dated 11 December 2020.

The parties relied on the…

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: [2020] NSWSC 1837
Decision Date: 16 December 2020

CaseChat Overview and Summary

The case of White v Attwells (No 2) arose in the Supreme Court of South Australia, where the primary dispute was over the apportionment of legal costs between the parties. The plaintiff, White, had originally sued Attwells for damages but later discontinued the proceedings. The primary legal issue before the court was whether the plaintiff, who had discontinued the proceedings without settlement, should be ordered to pay the defendant's costs. Additionally, the court had to consider whether the successful party, Attwells, should receive a discount on the costs awarded due to the plaintiff's actions that prolonged the proceedings.

The court examined the relevant legal principles governing costs in actions between party and party. It noted that the general rule is that the unsuccessful party must pay the successful party's costs, but this rule is not absolute and may be varied if circumstances warrant it. The court also reviewed the relevant case law that indicated that courts have a discretion to adjust costs if one party has acted unreasonably or has unreasonably prolonged the proceedings. Regarding the plaintiff's discontinuation of the proceedings, the court held that it was not a result of a settlement and thus, the usual rule of costs should apply. However, the court exercised its discretion to reduce the costs awarded to Attwells due to the plaintiff's actions that prolonged the proceedings. The court concluded that the plaintiff was not entitled to be excused from paying the defendant's costs because the discontinuance was not due to a settlement.

The court ordered that White pay Attwells the sum of $17,160. However, this amount was subject to a discount of 10% due to the plaintiff's unreasonable conduct in prolonging the proceedings. The court held that this discount was appropriate given the circumstances of the case.

Orders