Zuecker v Bruggmann (No 2)

In the matter of Zuecker v Bruggmann (No 2), the plaintiff, Zuecker, sought to recover costs incurred during the course of a civil trial against the defendant, Bruggmann. The dispute arose out of a five-day hearing that was scheduled, but was disrupted when Bruggmann, who was representing himself, fell ill on the second day. This led to the adjournment of the trial on the third, fourth and fifth days, with costs of the adjournment reserved. The case was heard by the Supreme Court of New South Wales.

The primary legal issue before the court was determining the appropriate costs order given the unusual circumstances of the trial adjournments. The court had to consider the general principle that costs follow the event, but also had to balance this with the specific circumstances of the case, including the defendant’s illness and the necessity of the adjournments. The court was required to decide whether the plaintiff should bear the costs of the adjourned days or if the defendant should be liable for those costs.

The court considered the principle that costs generally follow the event, meaning that the unsuccessful party in a litigation usually pays the costs of the successful party. However, the court recognised the exceptional nature of this case, where the defendant’s illness necessitated the adjournments. The court determined that it was appropriate to order the costs thrown away by the adjournments to be borne by the plaintiff, as the defendant’s illness was unforeseen and beyond his control. Additionally, the court held that the plaintiff’s costs of applying for the costs order should also be borne by the plaintiff.

Accordingly, the court made an order that the plaintiff’s costs thrown away by the adjournments on 3, 4 and 5 November 2015 be the plaintiff’s costs in the proceeding. Furthermore, the plaintiff’s costs of its application for a costs order in respect of those costs were also to be the plaintiff’s costs in the proceeding. This decision balanced the general rule of costs following the event with the specific circumstances of the case, ensuring a fair outcome for both parties.