Applicant to pay respondents' costs of $1,659.90 under r 1720(3)(c) of the Court Procedures Rules 2006 (ACT).

PROCEDURE - COSTS - Whether applicant to pay respondents' costs - Costs under r 1720(3)(c) of the Court Procedures Rules 2006 (ACT)

Court Procedures Rules 2006 (ACT) r 1720(3)(c)

Andara Homes Pty Ltd v Palm & Jiang [2014] ACTSC 141

Ezekiel-Hart v Ikoro (ACT Magistrates Court, Magistrate Lawton, 14 October 2019)

Ezekiel-Hart v Ikoro [2020] ACTSC 6

Owners of Unit Plan 932 v De Andrade (No 3) [2017] ACTSC 410

1. On 31 January 2020, I refused the applicant's application for leave to appeal out of time against orders made by Magistrate Lawton: Ezekiel-Hart v Ikoro [2020] ACTSC 6.

2. In the Magistrates Court, the applicant had claimed damages for unjust enrichment associated with an occupancy/tenancy arrangement between himself (as occupant) and the respondents (as property owner and landlord). Magistrate Lawton had entered judgment against the applicant and required him to pay the respondents' costs, assessed at $13,339.86, under r 1720(3)(c) of the Court Procedures Rules 2006 (ACT) (CPR): Ezekiel-Hart v Ikoro (ACT Magistrates Court, Magistrate Lawton, 14 October 2019).

3. In refusing the applicant's application for leave to appeal, I found that none of the proposed grounds of appeal was arguable.

4. Prima facie, the applicant should pay the respondents' costs. I permitted the parties to file and serve written submissions on the question of costs. Both did so.

5. The respondents asked for the sum of $1,659.90 in costs, fixed by the Court pursuant to r 1720(3)(c) of the CPR. The respondents submitted that the applicant had failed to respond to costs claims and to appear at taxation hearings in relation to costs orders made by Magistrate Lawton (prior to the order made by his Honour under r 1720(3)(c) of the CPR) and Magistrate Morrison in related 2018 proceedings.

6. The respondents itemised their claim for the sum of $1,659.90.

7. The applicant contended that each party should pay its own costs. In the applicant's written submissions on costs, he sought to traverse Magistrate Lawton's factual and legal findings and my decision that the proposed appeal against those findings lacked merit. He claimed that the decisions had been obtained by fraud. He submitted that any costs order would be an encouragement to dishonesty and would "present the Court as [an] instrument of oppression": at [72] of the applicant's written submissions. He sought the Court's legal advice on a wide range of matters which he perceived to be connected with the proceedings before Magistrate Lawton.

8. It is not the Court's function to provide legal advice. The substantive issues between the parties were resolved by my decision of 31 January 2020.

9. The purpose of the rule permitting a court to order a fixed sum for costs is to avoid any unwarranted expense, delay and aggravation that may be involved in litigation over costs, including in the circumstance that the party against whom the order is made is unlikely to be able to pay the costs: see Andara Homes Pty Ltd v Palm & Jiang [2014] ACTSC 141 and Owners of Unit Plan 932 v De Andrade (No 3) [2017] ACTSC 410.

10. The applicant has a history of failing to respond to costs claims. He continues to contest almost every aspect of the substantive findings against him. Because he feels very strongly that the Courts' decisions are wrong, it is highly unlikely that he would participate constructively in any costs assessment process associated with the adverse decisions. The respondents seek a very modest sum by way of costs. I am satisfied that it is appropriate to proceed under r 1720(3)(c).

11. The applicant is to pay the respondents' costs of these proceedings.

12. Pursuant to r 1720(3)(c) of the CPR, I order the applicant to pay to the respondents an amount of $1,659.90 for costs.

I certify that the preceding twelve [12] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell.