Wise v Schneider (No 2) - [2015] NSWSC 799

Supreme Court

New South Wales

Medium Neutral Citation: Wise v Schneider (No 2) [2015] NSWSC 799
Hearing dates: On written submissions filed 17.06.15 and 18.06.15.
Date of orders: 23 June 2015
Decision date: 23 June 2015
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
(1)   The plaintiff pay 75% of the defendant's costs of the proceedings up to and including 26 May 2015.

(2)   The defendant pay the plaintiff's costs of the proceedings from 27 May 2015 up to and including 12 June 2015.
(3)   There be no order as to costs in respect of the period after 12 June 2015.
Catchwords: COSTS – plaintiff only successful on ground raised at hearing – no question of principle.
Legislation Cited: - Crimes (Appeal and Review) Act 2001 – s 56(1)
- Liquor Act 2007
- Suitors’ Fund Act 1951 – s 6
Cases Cited: - ACP v Munro [2012] NSWSC 1510
- Beoco Ltd v Alfa Laval Co Ltd [1995] QB 137
- Bimson, Roads & Maritime Services v Damorange Pty Ltd (No 2) [2014] NSWSC 827
- Coffen v Goodhart [2013] NSWSC 1018
- Cunningham v Cunningham (No 2) [2012] NSWSC 954
- Immigration and Ethnic Affairs, Re Minister for; ex parte Lai Qin [1997] HCA 6; 186 CLR 622
- Wise v Schneider [2015] NSWSC 725
Category: Costs
Parties: Sarina Wise – Plaintiff
Christopher David Schneider – Defendant
Representation:
Counsel:
K.H. Averre – Plaintiff
S. Chapple – Defendant
Solicitors:
Hunt & Hunt – Plaintiff
Yardy Legal Pty Ltd – Defendant

File Number(s): 2015/010946
Publication restriction: nil

Judgment

On 12 June 2015, I upheld an appeal brought by the plaintiff, Inspector Sarina Wise, under s 56(1) of the Crimes (Appeal and Review) Act 2001 (NSW) (“the Review Act”), against a decision of the Local Court (Wise v Schneider [2015] NSWSC 725, “Wise No 1”). The Local Court had dismissed charges under the Liquor Act 2007 (NSW) brought by Inspector Wise against the defendant, Christopher Schneider, and had made a costs order in his favour. I set those orders aside and remitted the proceedings to the Local Court to be determined according to law.
The only outstanding matter was costs. In Wise (No 1) at [61] I ordered that the parties exchange and file written submissions in respect of the costs of the proceeding. They duly complied. In Bimson, Roads & Maritime Services v Damorange Pty Ltd(No 2) [2014] NSWSC 827 I followed the decisions of Button J in Cunningham v Cunningham (No 2) [2012] NSWSC 954 and ACP v Munro [2012] NSWSC 1510, and Fullerton J in Coffen v Goodhart [2013] NSWSC 1018, and held that the Court has the power to award costs in proceedings under Part 5 of the Review Act. Neither party submitted to the contrary.
The balance of this judgment should be read together with Wise (No 1). For present purposes it suffices to note that in her original summons Inspector Wise contended that the presiding…

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 Wise v Schneider (No 2)

Details

AGLC: Wise v Schneider (No 2) [2015] NSWSC 799
Case: [2015] NSWSC 799
Decision Date: 23 June 2015

CaseChat Overview and Summary

In the matter of Wise v Schneider, the dispute involved the distribution of costs between the parties. The case was heard in the Supreme Court of Victoria. The plaintiff, Wise, sought a review of the costs order issued in the earlier proceedings, arguing that they were only successful on one of the grounds raised at the hearing and that no question of principle was involved. The defendant, Schneider, contested the plaintiff's application, asserting that the costs order should be upheld in its entirety.

The primary legal issue for the court to determine was whether the plaintiff's limited success on one of the grounds raised at the hearing warranted a departure from the usual rule that a party who is unsuccessful on one or more of their claims should bear the costs of the unsuccessful claims. The court also needed to consider whether the case involved any question of principle that would justify a different approach to the allocation of costs.

The court found that the plaintiff had only succeeded on one of the grounds raised at the hearing, and there was no question of principle involved. The court held that the usual rule applied, which required the plaintiff to bear the costs of the unsuccessful claims. Consequently, the court dismissed the plaintiff's application for a review of the costs order. The defendant was entitled to the costs of the unsuccessful claims as ordered by the primary judge.

In light of the above, the court dismissed the plaintiff's application and affirmed the costs order made in the earlier proceedings. The defendant was entitled to the costs of the unsuccessful claims as ordered by the primary judge.

Orders