Young v Cooke - [2016] NSWSC 1386

Supreme Court

New South Wales

Medium Neutral Citation: Young v Cooke [2016] NSWSC 1386
Hearing dates: 27 September 2016
Decision date: 27 September 2016
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1) Order that the summons filed 8 September 2016 be dismissed.
(2) Order the plaintiff to pay the defendants’ costs of the proceedings which include the costs of today’s motion.
Catchwords: PRACTICE AND PROCEDURE – summons seeking declaration that costs of proceedings before Court of Appeal subsumed in costs order made by Magistrate in Local Court – notice of motion seeking dismissal of proceedings pursuant to UCPR r 13.4 – Local Court has no power to affect a costs order made by Court of Appeal – summons dismissed
Legislation Cited: Civil Procedure Act 2005 (NSW), s 148
Crimes Act 1900 (NSW), s 338
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), r 13.4
Category: Principal judgment
Parties: Gary Young (Plaintiff)
Bill Cooke (First Defendant)
Helena Cooke (Second Defendant)
Representation:
Counsel:
Plaintiff in person
D Stewart (Defendants)
Solicitors:
Plaintiff in person
Chapman Thackeray Law (Defendants)

File Number(s): 2016/269791

Judgment: EX TEMPORE

By summons filed on 8 September 2016, Gary Young commenced proceedings against Bill and Helena Cooke, the defendants. He claimed the following relief:

“For a declaration that costs mentioned in paragraph 7 of His Honour Magistrate Bradd's order of 2 May of 2016 are costs referred to and included in the overall order and thus costs mentioned in paragraph 7 are unavailable to defendants. Further details see attached."

The defendants, by motion filed on 16 September 2016, sought dismissal of the proceedings pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 13.4.
The context of Mr Young’s claim for relief in the summons can be explained by reference to the reasons for decision of Magistrate Bradd dated 2 May 2016 in the matter of Young v Cooke, which were proceedings brought by Mr Young against the Cookes in the Local Court. In [7] of the reasons, Magistrate Bradd said:

“Mr Young was ordered to pay to Mr and Mrs Cooke costs of an appeal filed in the Court of Appeal, which costs have been assessed as $6,281.26.”

At the conclusion of the matter Magistrate Bradd made the following order, as set out in [49] of the reasons:

“I decline to make an order for the plaintiff to pay the costs of the defendants."

There were earlier disputes between the parties, the detail of which is not important for present purposes, which resulted in litigation. At the conclusion of one such proceeding, the Court of Appeal (Meagher and Emmett JJA) refused Mr Young’s application for leave to appeal and ordered him to pay the Cookes’ costs of the proceedings: Young v Cooke [2013] NSWCA 79. These costs were subsequently assessed in an amount of $6,281.26. This is the costs order and amount which were noted by Magistrate Bradd at [7] of his Honour’s reasons set out above.
Mr Young argued before me that 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.

Continue reading Young v Cooke

Details

AGLC: Young v Cooke [2016] NSWSC 1386
Case: [2016] NSWSC 1386
Decision Date: 27 September 2016

CaseChat Overview and Summary

In the Local Court of New South Wales, Young, the plaintiff, commenced proceedings against Cooke, the defendant, seeking a declaration that the costs of proceedings before the Court of Appeal were subsumed in a costs order made by a Magistrate in the Local Court. Cooke responded by filing a notice of motion under rule 13.4 of the Uniform Civil Procedure Rules 2005 (NSW), seeking to have the summons dismissed on the grounds that the Local Court lacked jurisdiction to affect a costs order made by the Court of Appeal. The primary legal issue before the court was whether the Local Court had the authority to alter or affect a costs order that had been issued by the Court of Appeal. The court considered the relevant provisions of the Local Court Act 1993 (NSW) and the Uniform Civil Procedure Rules 2005 (NSW), concluding that the Local Court did not have the jurisdiction to amend or interfere with a costs order made by the Court of Appeal. The court emphasised the distinct roles and powers of the Local Court and the Court of Appeal, and that the Local Court could not affect the validity or enforceability of a costs order made by a higher court. Consequently, the summons was dismissed, and the court held that the Local Court was without power to alter the costs order made by the Court of Appeal.

Orders