AMC Caterers Pty Limited & 1 Or v Stavropoulos [2005] NSWCA 79 (15 March 2005)

CITATION: AMC Caterers Pty Limited & 1 Or v Stavropoulos [2005] NSWCA 79

FILE NUMBER(S):

40578/04

HEARING DATE(S): 15/03/05

JUDGMENT DATE: 15/03/2005

PARTIES:

AMC Caterers Pty Limited (First Claimant)

Spak Investments Pty Ltd (Second Claimant)

Georgina Stavropoulos (Opponent)

JUDGMENT OF: Ipp JA McColl JA Einstein AJA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 9034/01

LOWER COURT JUDICIAL OFFICER: Truss DCJ

COUNSEL:

D J Hooke (First & Second Claimants)

R Harrington (Opponent)

SOLICITORS:

Edwards Michael (First & Second Claimants)

Carroll & O'Dea (Opponent)

CATCHWORDS:

COSTS - Special circumstances when costs do not follow the event - Smallness of the judgment sum, particularly where it does not repersent money to be received by a plaintiff, is capable of constituting special circumstances - Berrico Estate Pty Ltd v Andersen [2003] NSWCA 23 applied. ND

LEGISLATION CITED:

DECISION:

(1) Application for leave to appeal granted (2) Appeal upheld (3) Order made by Truss DCJ that the claimants pay the opponent's costs of the action is set aside and, in lieu thereof, an order is made that the opponent pay the claimants' costs of the action (4) The costs of the application for leave to appeal and the appeal be paid by the opponent (5) The opponent is to have a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise entitled.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40578/04

DC 9034/01

IPP JA

McCOLL JA

EINSTEIN AJA

Tuesday 15 March 2005

AMC CATERERS PTY LIMITED & 1 OR v GEORGINA STAVROPOULOS

Judgment

1 IPP JA: This is an application for leave to appeal and, if granted, an appeal against a decision of Truss DCJ. By that decision, her Honour ordered the claimants to pay the opponent's costs of an action in which the opponent claimed damages for negligence from them. In the substantive action her Honour awarded damages to the opponent of a relatively small amount, namely, in round figures, $129. This $129 did not find its way into the pocket of the opponent; it represented medical expenses that had been paid by Medicare and had to be re-paid to Medicare itself. In circumstances of this kind (where the judgment amount is so small), the general approach to be adopted is that laid down in Berrico Estate Pty Ltd v Andersen [2003] NSWCA 23 by Giles JA (at [39]) and Hodgson JA (at [35]).

2 Truss DCJ did not refer to Berrico Estate but did make mention of Laguillo v Hayden Engineering Pty Ltd [1978] 1 NSWLR 306. She said that the principle was that, in the absence of special circumstances, costs should follow the event. Putting the matter this way was unexceptionable. Her Honour then dealt with the argument raised by the claimants, namely, that the small amount of judgment constituted special circumstances that should result in the claimants not being ordered to pay the opponent’s costs.

3 Her Honour rejected the claimants’ argument. She reasoned as follows. The hearing occupied four days and all aspects of the claim were “strongly contested” by the claimants. On the issue of liability, the opponent called two witnesses and the claimants three. Further, the quantum of damages involved complex medical issues and a contract tendered by the claimants. These factors led her to conclude that no special circumstances existed.

4 In my opinion, her Honour erred. As is apparent from Berrico Estate, the smallness of the judgment sum, particularly where it does not represent money to be received by a plaintiff, is capable of constituting special circumstances. Her Honour seemed to regard the fact that the hearing occupied four days and the fact that the claim was strongly resisted by the claimants in some way negated the effect of the smallness of the judgment amount and the fact that it was not to be paid to the claimants.

5 The judge’s reasoning, with respect, was fallacious.

6 There was nothing improper in the conduct of the claimants in resisting the claim or in the way in which it conducted its defence. The mere fact that a defendant strenuously contests a claim does not entitle a plaintiff to the costs of a trial where the plaintiff does not succeed, or does not succeed to any material extent.

7 The fact that the opponent called two witnesses and the claimants three on the issue of liability was irrelevant to the question of liability for costs. The same applies to the complexity of the quantum of damages and the fact that the claimants tendered a considerable amount of evidentiary material.

8 The amount of costs involved is substantial. The trial itself, as I have mentioned, took four days and, if the orders were allowed to stand, I think an injustice would be done.

9 Other matters were raised on behalf of the claimants but these concerned matters that were not put to the judge and in my opinion this Court should not entertain them.

10 For the reasons stated, I would grant leave and uphold the appeal. The orders that I propose are:

1. The application for leave to appeal is granted.

2. The appeal is upheld.

3. The order made by Truss DCJ that the claimants pay the opponent’s costs of the action is set aside and, in lieu thereof, an order is made that the opponent pay the claimants’ costs of the action.

4. The costs of the application for leave to appeal and the appeal are to be paid by the opponent.

5. The opponent is to have a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise entitled.

11 McCOLL JA: I agree.

12 EINSTEIN AJA: I agree.

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LAST UPDATED: 31/03/2005