On 21 September 2023, I delivered judgment dismissing the Summons filed by Fairfield City Council pursuant to s 39(1) of the Local Court Act 2007 (NSW): Fairfield City Council v Bastow Civil Constructions Pty Ltd [2023] NSWSC 1143. I will use the same defined terms below as I adopted in that judgment.
At [111], I noted that the result was in favour of the defendant, Bastow, but that both parties had achieved a measure of success in their respective legal arguments, and neither party had achieved complete success. I allowed a short period of time for the parties to file and serve brief written submissions on costs, with a view to my determining the issue on the papers.
On 5 October 2023, the parties provided the Court with written submissions as directed. The parties contend for very different costs orders.
The Council submits that Bastow should pay 75% of the Council's costs of the proceedings on an ordinary basis. It submits that it would be appropriate for the Court to apportion costs as between the parties on the respective issues as to which they had achieved success. The Council had been successful in its submission that s 45(3) of the Impounding Act 1993 (NSW) did not create a cause of action (which had been the basis on which the Magistrate had found it was liable). The Council had also succeeded in its argument that the Magistrate had wrongly found that it had conceded that there was a statutory cause of action available. As this Court did not express any concluded view on the balance of its grounds of appeal (it being unnecessary to do so), the Council had not been unsuccessful in any of its grounds of appeal. By contrast, the only practical success Bastow had achieved was on one ground of its notice of contention.
Alternatively, the Council submits that if the Court is of the view that some other costs order should be made in the circumstances, it would be just and reasonable for each party to bear its own costs of the proceedings.
Bastow submits that the dispute before the Court related to whether the Magistrate's order giving judgment for Bastow should be set aside and substituted with an order giving judgment for the Council. In circumstances where the Court had upheld her Honour's order (albeit on the basis of negligence rather than breach of statutory duty), the practical result was that Bastow retained the full benefit of the success it enjoyed at first instance. In accordance with rule 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), Bastow submits that it is entitled to its costs.
Bastow next submits that there are no circumstances justifying departure from the general rule. It accepts that it had mixed success; most obviously, it succeeded in establishing the Council's liability in negligence but did not preserve her Honour's finding that the Council was liable for breach of a statutory duty under the Impounding Act. However, none of the issues in respect of which Bastow was unsuccessful were (individually or collectively) "clearly dominant" in the proceedings as a whole. Having regard to the issues, none of which took up significant time in the hearing or unnecessarily prolonged the length of the hearing, Bastow submits that it is not clear how subdivision of costs by reference to particular issues could be done in any reliable or even approximate manner.
Bastow further submits that to the extent that the Council enjoyed success in relation to overturning the Magistrate's conclusion that there was a statutory cause of action under the Impounding Act, it had only pressed that cause of action in response to the position taken by the Council, that the only claim Bastow could prosecute was one under the Impounding Act (and only if the Impounding Act specifically provided for a cause of action). Bastow's primary cause of action, however, was negligence. In those circumstances, any apparent success enjoyed by the Council in relation to the operation of the Impounding Act was, in Bastow's submission, illusory.
[2]
Consideration
Section 98(1) of the Civil Procedure Act 2005 (NSW) relevantly 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.
Rule 42.1 of the UCPR provides that, where the Court makes an order as to costs, the Court is to order that 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.
In Ryde Developments Pty Ltd v The Property Investors Alliance Pty Ltd (No 2) [2018] NSWCA 40 ("Ryde Developments") at [6], the Court of Appeal (Beazley P, Payne JA, Barrett AJA) referred to the wide discretion in s 98 and the general rule in r 42.1 of the UCPR, and summarised a number of key principles, starting with identifying "the event" for the purposes of r 42.1:
"The 'event' may be characterised in more than one way. Generally the 'event' refers to the result of the claim or counterclaim, as the case may be, and may be understood as referring to the practical result of a particular claim: Doppstadt Australia Pty Ltd v Lovick & Sons Developments Pty Ltd (No 2) [2014] NSWCA 219 at [15] per Ward, Emmett and Gleeson JJA. Where there has been a mixed outcome in the proceedings, and it is appropriate to entertain the process of apportioning costs as between different issues in the proceedings, in general such an exercise will be carried out on a relatively broad brush basis, and largely as a matter of impression and evaluation by the Court: Doppstadt at [19]; James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [36]; Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20 at 22.
The Court of Appeal in Ryde Developments also quoted with approval from the reasons in Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 at [38] where the Court of Appeal identified the principles relevant to determining costs on an issue-by-issue basis, including that in a case involving multiple issues, "the Court does not generally attempt to differentiate between the issues on which a party was successful and those on which it failed", although the position might be different where a particular issue or group of issues is "clearly dominant or separable".
Bastow has maintained the outcome that it obtained before the Magistrate. Pursuant to the ordinary rule in r 42.1, costs should be ordered in its favour unless it appears to me that some other order should be made. Although I posited in my primary judgment that the case may be one for departure from the ordinary rule as to costs, having considered the submissions of the parties I do not consider that the issues in the case were so separable that it would be appropriate to depart from the ordinary rule that costs should follow the event.
In relation to the two alternative costs orders that the Council advanced, I do not consider that the Council has established a basis for an order that Bastow pay 75% of the Council's costs. The Council was successful on the question of whether s 45(3) of the Impounding Act confers a cause of action. However, I ultimately dismissed the Summons on the basis that, contrary to the Council's submissions, the Impounding Act did not extinguish Bastow's cause of action in negligence. Further, although the Council was correct in its submission that s 43A of the Civil Liability Act 2002 (NSW) applied, I ultimately concluded that "no authority could properly consider that the sale of the truck in the present case, in the face of the Council's omissions, was a reasonable exercise of the power in s 24 of the Impounding Act": at [110].
I also do not consider that it would be appropriate to adopt the alternative costs position for which the Council contended, that each party should bear their own costs of the proceedings. The Council's submissions have not satisfied me that such an outcome would be appropriate having regard to the outcome of the proceedings and Bastow's success on a claim that the Council contended was simply unavailable.
It follows that I order the Council to pay Bastow's costs of the Summons.
[3]
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: 13 October 2023