Hopkins v QBE Insurance Ltd [1992] NTSC 7; 2 NTLR 147; 106 FLR 77 (19 February 1992)

COURT IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA MARTIN J CWDS Judgment and orders - Costs - Interlocutory Application -judgment in default of appearance - application to set aside by defendant - no order as to costs in Interlocutory Applications where grounds of application reasonable and no extraordinary circumstances - service of writ directly upon defendant not an exceptional circumstance - Supreme Court Rules (NT) R. 63.18 Practice and procedure - Costs - Interlocutory Application -judgment in default of appearance - application to set aside by defendant - no order as to costs in Interlocutory Applications where grounds of application reasonable and no extraordinary circumstances - service of writ directly upon defendant not an exceptional circumstance - Supreme Court Rules (NT) R. 63.18. TTE Pty Ltd and Anor v Ken Day Pty Ltd (unreported, 29 May 1990). Supreme Court Rules (NT) 1987. HRNG DARWIN, 2 December 1990 #DATE 19:2:1992 Counsel for plaintiff: J Reeves Solicitors for plaintiff: Cridlands Counsel for defendant: S Gearin Solicitors for defendant: Ward Keller ORDER Application refused. JUDGE1 MARTIN J On 22 May last year I ordered, upon an application by the defendant, that a judgment obtained against it in default of appearance be set aside and then indicated that I would hear counsel as to any further orders including as to costs. The cost issue was argued on 2 December 1990. The order was made pursuant to an interlocutory application and thus each party must bear its own costs unless the Court otherwise orders (r. 63.18). In TTE Pty Ltd and Anor v Ken Day Pty Ltd (unreported, 29 May 1990) I said that the rule marked a radical departure from the general practice relating to costs prior to commencement of the new Supreme Court Rules in that prior to then a party in whose favour an interlocutory order had been made would normally have expected to have an order for his costs of the application pursuant to the general rule that costs followed the event. (Subject always, of course, to the exercise of discretion). I went on to observe that the departure from the previous general principle leads to the view that there must be something exceptional about the circumstances of the interlocutory application under consideration to lead the Court, in the exercise of its discretion, to make an order as to costs. "What is required is an approach which seeks to have a successful party reimbursed the expenses of interlocutory proceedings which, for example, would have been unnecessary or which are unnecessarily burdensome .... ". I went on to say that no order as to costs ought to be made against the unsuccessful party, in the usual run of cases, even if contested, if the grounds of the application or resistance, as the case may be, were reasonable. "However, if such application or resistance is without real merit, as is often the case, the successful party should not have to bear its costs." 2. The only reason put forward by the defendant as to why it had failed to enter an appearance, and thus enabled the plaintiff to obtain the judgment in default, was that the solicitors for the plaintiff had acted in bad faith or unfairly towards the defendant or its solicitors by serving the writ directly upon the defendant and obtaining judgment without giving notice. I firmly rejected the proposition that the solicitors had acted in such a way. The fact that an appearance had not been entered was entirely down to the defendant and it was its own fault that made it necessary to make the application to set the judgment aside. It was unsuccessful on that issue. 3. There were four other major issues argued and they and the result of them may be briefly summarised as follows: