Gattelleri v Meagher [1999] NSWSC 1279 (10 September 1999)

Last Updated: 19 April 2001

NEW SOUTH WALES SUPREME COURT

CITATION: Gattelleri v Meagher [1999] NSWSC 1279

CURRENT JURISDICTION: Civil

FILE NUMBER(S): 20813/96

HEARING DATE{S): 10 September 1999

JUDGMENT DATE: 10/09/1999

PARTIES:

Rocky GATTELLARI - Plaintiff

Reba MEAGHER - Defendant

JUDGMENT OF: Simpson J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:

Ms L McCallum - Plaintiff

Mr M Lynch - Defendant

SOLICITORS:

Uther Webster & Evans - Plaintiff

McClellands - Defendant

CATCHWORDS:

ACTS CITED:

DECISION:

Order the defendant's costs ordered on 20 March 1998 be assessed and payable on the conclusion of that assessment. Order the plaintiff to pay the defendant's costs of this application.

JUDGMENT:

THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

SIMPSON J

Friday 10 September 1999

20813/96

Rocky GATTELLARI v Reba MEAGHER

Judgment

HER HONOUR :

1 On 20 March 1998 I delivered judgment in relation to an application by the defendant that the plaintiff be ordered to amend the Statement of Claim by adding certain material to the matter complained of, and I made such an order in favour of the defendant.

2 I am told that on the same date an amended statement of claim was filed and presumably served. I ordered also that the plaintiff pay the defendant's costs of that application.

3 The defendant now seeks an order that the costs be assessed and payable forthwith, without waiting until the conclusion of the proceedings, and relies on the provisions of Pt 52A r 9(1) which provides as follows:

"Where before the conclusion of any proceedings, other than proceedings entered in the Commercial List or the Construction List, the Court makes an order for the payment of costs or a motion is refused with costs, the costs shall not, unless the Court otherwise orders, be payable until the conclusion of the proceedings."

4 Then defendant's present application is based on the assertion that the plaintiff acted unreasonably in refusing to take the course proposed and ultimately ordered, in resisting the application.

5 The fact that the plaintiff was unsuccessful in that application does not of itself establish that the conduct was unreasonable and, for the purpose of the present application, I was reminded of some evidence that had been placed before me on the previous application, and also provided with an additional affidavit setting out at least some of the steps that had been taken by the plaintiff or on his behalf in relation to the issues with which I was then concerned.

6 I am not satisfied that the plaintiff's conduct was unreasonable or, to use the term adopted by counsel for the defendant, specious. But the fact remains that the plaintiff was unsuccessful in the application.

7 The plaintiff opposed the orders proposed, asserting that he had taken a proper position initially and that the material that was available to him was such as to make the adoption of that position reasonable. The plaintiff further relied upon delay on the part of the defendant in bringing this application.

8 As I have noted, judgment was delivered on 20 March 1998 and I was told that the amended Statement of Claim had been filed on 20 August 1998. In response to that, I was provided with correspondence which shows that some attempts had been made on the part of the defendant to have this application listed before me to suit the convenience of both of the counsel originally involved in my own commitments and that appears to have been an explanation for at least part of the delay.

9 The discretion provided by r 9(1) is a wide one and appears to me to be unconfined. It is true that given the way the rule is framed, the prima facie position is that costs do not become payable until the conclusion of the proceedings. But the rule is not framed in such a was as to require any specific set of characterisation of circumstances in order to justify the making of an order. There was no material placed before me as to financial consequences for either of the parties should an order be made or not made.

10 There has been little, if any, progress in the matter since the filing of the amended Statement of Claim so far as I can see, and it would appear that both parties are responsible for that lack of progress. But it is something into which it is not appropriate or necessary to enquire further. So I am left with a balancing exercise. In my opinion the defendant is entitled to the benefit of the costs order already made and, in the absence of any hardship or disadvantage to the plaintiff, I am unable to see why the rule should be construed as though she had some additional hurdle to overcome I order to receive the benefit of it.

11 On balance it seems to me that I should make an order that the defendant's costs ordered by me on 20 March 1998 be assessed and payable on the conclusion of that assessment, and I so order.

12 I order the plaintiff to pay the defendant's costs of this application.

13 I will stand the matter over to 22 October for argument and I direct the defendant to file and serve a written outline of argument noting all issues to be raised on or before 24 September, and the plaintiff to respond by 8 October.

*******

LAST UPDATED: 25/01/2001