El-Saeidy v NSW Land and Housing Corporation

Supreme Court of NSW|2009-12-09|Before: Hislop J

Introduction 1This is an application for costs of a summons dismissed on the plaintiff's application pursuant to UCPR 29.8.

Background 2The plaintiff was the tenant of premises of the first defendant at Villawood. 3On 26 February 2009 police charged the plaintiff with assault occasioning actual bodily harm. The plaintiff pleaded not guilty to the charge. The alleged victim was the plaintiff's next door neighbour, also a tenant of the first defendant. 4As a result of the charge the first defendant commenced proceedings in the Consumer, Trader & Tenancy Tribunal ("CTTT") in April 2009 to terminate the plaintiff's tenancy pursuant to s 68 of the CTTT Act. The plaintiff defended those proceedings. 5On 24 September 2009 the plaintiff was ordered by the CTTT to "provide to the applicant and the Tribunal, a copy of any further documents on which the respondent intended to rely at the hearing by 15 October 2009". 6On 10 November 2009 this Court stayed the proceedings in the CTTT pending finalisation of the criminal proceedings on 7 December 2009. The plaintiff had made two previous unsuccessful attempts for a stay in the CTTT. 7On 1 December 2009 the CTTT refused the plaintiff's request for an extension of time for compliance with the order for the filing of further documents. The CTTT also confirmed that the matter remained listed for completion of the hearing on 10 December 2009. 8On 4 December 2009 the plaintiff filed a summons in this Court seeking administrative law relief against the CTTT for not permitting him to file an affidavit and other material after 15 October 2009. 9The first defendant opposed the orders sought in the summons. The CTTT filed a submitting appearance, save as to costs. 10On 7 December 2009 the charge against the plaintiff was dismissed. 11The hearing of the summons commenced on 9 December 2009 but was adjourned part heard. 12On 10 December 2009 the CTTT directed the plaintiff to file and serve on the first defendant a copy of the transcript of the criminal proceedings. 13On 1 February 2010 a copy of the transcript of the criminal proceedings was provided to the first defendant. 14On or about 12 February 2010 the CTTT proceedings were withdrawn by the first defendant as a consequence of the dismissal of the charge against the plaintiff. 15On 15 February 2010 the summons was before the court and the plaintiff was ordered to pay the costs of the day. 16On 2 March 2010 the summons was dismissed pursuant to UCPR 29.8 on the application of the plaintiff. The first defendant did not oppose the order. It was agreed there was no purpose to be served by pursuing the summons. There was no agreement as to the costs of the summons. The plaintiff sought such costs on an indemnity basis. The first defendant also sought costs. The costs applications were stood over pending the determination of the costs application in the CTTT proceedings. 17On 11 June 2010 the plaintiff sought costs in the CTTT proceedings. On 2 September 2010 the CTTT ordered the first defendant to pay the plaintiff's costs of the proceedings in the Tribunal. However, on 28 January 2011 that order was overturned on appeal to the District Court on the ground that the CTTT was functus officio when it made the order. 18At the request of the parties, it was agreed the costs application in relation to the summons be determined on written submissions. I have been furnished with submissions of the plaintiff and the first defendant pursuant to that agreement. I have had regard to those submissions and submissions made orally by the parties on 2 March 2010.

Principles 19Section 98(1) of the Civil Procedure Act provides: "(1) Subject to rules of court and to this or any other Act: (a) costs are in the discretion of the court, and (b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and (c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis." 20UCPR 42.1 provides: "Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs." 21Generally speaking, UCPR 42.1 has the effect that the successful party is entitled to its costs unless the court otherwise orders. 22UCPR 42.20(1) provides: "If the court makes an order for the dismissal of proceedings... then, unless the court orders otherwise, the plaintiff must pay the defendant's costs of the proceedings to the extent to which they have been dismissed." 23UCPR 42.20(1) has the effect that the plaintiff must pay the defendant's costs unless the court otherwise orders, and the court can only order otherwise if there is a discretionary decision to depart from what r 42.20(1) provides - Australiawide Airlines Limited t/as Regional Express v Aspirion Pty Limited [2006] NSWCA 365 at [10]. 24The issue is whether, in the exercise of the court's discretion, there should be a departure from UCPR 42.1 or 42.20(1).

Submissions 25The written submissions for the plaintiff proceed, in part, on the basis that the stay of the CTTT proceedings which was granted on 10 November 2009 was sought in the subject summons. That is not correct. Any submissions based on that statement are misconceived. 26The plaintiff had submitted orally on 2 March 2010 that the normal order provided for by UCPR 42.20 should not apply and the Court's discretion should be exercised by awarding costs to the plaintiff on an indemnity basis. 27It was submitted for the plaintiff that the costs of the summons were incurred because the first defendant commenced proceedings in the CTTT without properly investigating the matter and when, had the first defendant delayed the commencement of the CTTT proceedings to after the finalisation of the criminal proceedings, the proceedings would have been unnecessary as would the summons the subject of this application. 28It was also submitted that the plaintiff would have succeeded if the proceedings on the summons had continued to completion. 29The first defendant, in oral submissions, submitted that it had acted responsibly in bringing the proceedings in the CTTT. It was submitted that at the time the decision was taken "they had two independent witnesses, photographic evidence, police statements and the plaintiff at all times maintained his right to silence. If at any stage the Department had been made aware that there was an independent doctor, a reliable witness, the proceedings would not have been commenced...And at no time did the plaintiff say that he had this reliable, credible witness that was visiting him at the very time of the attack and had independent notes to say so. That came out in the trial." 30The first defendant also contended it would have succeeded if the proceedings on the summons had proceeded to completion. 31The first defendant submitted that the costs should be awarded to it pursuant to UCPR 42.20. No discretionary basis to vary that order was established, the Supreme Court proceedings were distinct and separate from the CTTT proceedings and the criminal proceedings. The defendant had been successful in the proceedings in this Court as those proceedings had been dismissed.

Determination 32The first defendant was successful in the proceedings on the summons in that the proceedings against it were dismissed. Prima facie, the first defendant is entitled to its costs pursuant to UCPR 42.1 or UCPR 42.20(1). 33However, the proceedings on the summons came to an end not because the first defendant's arguments prevailed at the end of the hearing of the summons but because a supervening event, namely the acquittal of the plaintiff, has had the effect of removing the basis for the CTTT proceedings and with it the need to determine the issues raised by the subject summons. It cannot be said that it was unreasonable to proceed on the summons or that either party was almost certain to have succeeded if the matter had been fully heard. 34In these circumstances, consideration can and should be given to the exercise of the court's broad costs discretion under s 98 of the Civil Procedure Act . This is relevant both to UCPR 42.1 and UCPR 42.20(1). As to the latter, it was said in Australiawide at [53] that r 42.20(1) would be overstated if described as creating a presumption about the disposition of costs. It goes no further than to state the first point of consideration; there is no presumption which must be outweighed; what the rule says is what the order for costs is to be unless there is a discretionary decision to order otherwise. At the discretionary stage the matters to be considered are little altered. 35In One Tel Limited v Deputy Commissioner of Taxation (2000) 101 FCR 548 at 553 Burchett J observed: "(6) In my opinion, it is important to draw a distinction between a case in which one party, after litigating for some time, effectively surrenders to the other, and cases where some supervening event or settlement so removes or modifies the subject of the dispute that, although it could not be said that one side has simply won, no issue remains between the parties except that of costs. In the former type of case, there will commonly be lacking any basis for an exercise of the court's discretion otherwise than by an award of costs by the successful party. It is the latter type of case which more often creates problems, since there may be difficulty in discerning a clear reason why one party, rather than the other, should bear the costs." 36In the circumstances of this case there is a difficulty in discerning a clear reason why one party rather than the other should bear the costs of the summons. 37The plaintiff contends the proceedings in the CTTT should never have been brought or continued. The first defendant contends it acted responsibly in bringing those proceedings and that it was well justified in so doing on the information available to it at the time. It acted appropriately in continuing the proceedings until it was furnished with, and had an opportunity to consider, the transcript of the criminal proceedings. 38I am unable to determine the issues thus raised on the evidence before me. No doubt those issues would be the subject of considerable debate. However, further evidence would be required to determine them. It is not the practice of the court to embark on a trial for that purpose - Australiawide at [4], and it would be inappropriate to do so in this case. 39In all of the circumstances the appropriate order, in my opinion, is that each party bear his or its own costs in respect of the subject summons, save for the costs of 15 February 2010 which were the subject of an earlier order that they be paid by the plaintiff.

Order 40Each party is to bear his or its own costs of the summons filed in this court on 4 December 2009 save for the costs in respect of 15 February 2010 which are to be paid by the plaintiff.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 May 2011

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