Levenspiel v Grinter [2021] NSWLC 11 | Case summary

D. LEGAL PRINCIPLES AND FINDINGS

In summary, Mr Levenspiel submitted that Mr Grinter did not take all reasonable steps to prevent the failure of the swivel, as he was responsible for the conduct of his mooring contractor, Brisbane Water Moorings, which failed to detect the deteriorated condition of the swivel when it inspected the swivel.
Mr Levenspiel further submitted that the swivel's failure was avoidable because the deteriorated condition of the swivel was obvious on inspection by any competent mooring contractor such as Mr Grinter's contractor, Brisbane Water Moorings. Mr Levenspiel argued that Brisbane Water Moorings had inspected the mooring on 8 March 2018 (12 months prior to the incident) and that its deteriorated condition must have been obvious, but no action was taken, and that the swivel was not in 'as new condition at the time of incident' even though it had been inspected 12 months prior to the collision.
By this description, Mr Levenspiel argued Mr Grinter owed him a non-delegable duty of care to ensure his mooring was serviced with reasonable care and skill.
In his closing submissions, consistent his opening submissions, Mr Levenspiel argued that his loss and damage occurred on the sea, and that the sea is a notoriously dangerous place. He argued that Mr Grinter had a duty of care to not allow Siesta to come free from its mooring. He delegated or entrusted Mr Clements and Brisbane Water Moorings to do the necessary work of maintaining and servicing the Siesta mooring to make sure that Siesta would not come free from its mooring and collide with Investigator and the jetty. Mr Levenspiel submitted that the facts show that Mr Clements and Brisbane Water Moorings failed to carry out that work so as to prevent the failure of the swivel and the resulting collision, and that Mr Grinter's liability is the vicarious liability for the negligence of Mr Clements and Brisbane Water Moorings to whom Mr Grinter delegated or entrusted the mooring maintenance and servicing work.
Mr Levenspiel argued that Mr Grinter's liability arises in special circumstances involving the safety of vessels on the sea. He further argued that Mr Grinter was responsible for the care and safety of other vessels and jetties and in this case was liable for the loss and damage Siesta caused to Mr Levenspiel's property as a consequence of Siesta breaking loose from its mooring.
Mr Levenspiel contended that it does not matter whether or not Mr Clements and Brisbane Water Moorings is an independent contractor to Mr Grinter, because the facts show that Mr Grinter delegated or entrusted the mooring work to Mr Clements and Brisbane Water Moorings and there was prima facie evidence of negligence by Mr Clements and Brisbane Water Moorings.
Mr Levenspiel also argued that Mr Grinter had obligations under cl 67ZA of the Ports and Maritime Administration Regulation 2012, which were in mandatory terms, requiring him to ensure that the swivel (as part of the mooring equipment) used to secure his vessel to the mooring was suitable. Clause 67ZA was in the following terms at the time of the collision: 67ZA Licence conditions (1) A mooring licence may be granted subject to such conditions as may be specified in the licence. (2) In addition to the conditions specified in a licence, a licence is subject to the following conditions - (a) the equipment used to secure a vessel to the mooring must be suitable to secure the vessel occupying the mooring in that location and meet the standards set by Transport for NSW, (b) a vessel occupying a mooring must be registered under the Marine Safety Act 1998 or have a certificate of operation or identification number issued under the National law, (c) the mooring licence number must be displayed on the buoy attached to the mooring in characters not less than 50mm high and must not be obscured, (d) the licensee is to ensure that any vessel secured to the mooring is appropriate to the type of mooring concerned. (3) A licensee must comply with any conditions to which the licence is subject. Maximum penalty (subsection (3)): 50 penalty units.
The Ports and Maritime Administration Regulation 2012 was repealed on 1 September 2021 by s 10(2) of the Subordinate Legislation Act 1989.
Mr Levenspiel emphasised the 'strict liability and non-delegable nature' of the obligation under cl 67ZA, being an obligation out of which Mr Grinter could not be excused.
As I said earlier, Mr Levenspiel's claim is based on a cause of action in negligence. The elements of this cause of action are well known, and were set out, for example, in Reed v Warburton [2011] NSWCA 98 as follows: 1. The defendant owes a duty of care to the plaintiff; 2. The defendant breaches that duty; and 3. The defendant's breach of duty is the cause of the damage suffered by the plaintiff (being damage which is not too remote).
Claims in negligence are also governed by the provisions of the Civil Liability Act 2002, but neither party pleaded any particular reliance on, or made submissions in reliance on, any of those provisions in the context of the current proceedings.
Given the way Mr Levenspiel cast his case, it is necessary to observe that a 'non delegable duty of care' arises where there is a special relationship between the plaintiff and the defendant where the defendant is in a special position with respect to the plaintiff: see for example Ellis v Wallsend District Hospital (1989) 17 NSWLR 553. The easiest way to explain the relationship is with examples arising out of everyday life. The law provides, for example, that the relationship of employer to employee, hospital to patient and school to student are relationships which give rise to a non-delegable duty of care: see for example the discussions in Kondis v State Transport Authority (1984) 154 CLR 672 and Commonwealth v Introvigne (1982) 150 CLR 258.
Relevantly, a non-delegable duty of care may arise where the party that owes the duty is so placed in relation to another person or their property that they assume a particular responsibility for his or its safety, or where the party owing the duty has undertaken the care, supervision or control of the person or property: see Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520. This creates a relationship of proximity which is marked by special dependence or vulnerability on the part of the person to whom the duty is owed: see Woodhouse v Fitzgerald and McCoy (No. 2) [2020] NSWSC 450 at [226].
The hallmark of the relationship is usually the introduction, by the party owing a duty, of an inherently dangerous substance or activity: see NMFM Property Pty Ltd v Citibank Ltd (No. 10) [2000] FCA 1558 at [822] - [833]. There are a number of existing categories of relationship which are recognised as imposing a non-delegable duty of care. This duty should not be extended beyond the limited number of existing categories without a 'sound doctrinal basis' and there is no pressing practical reason for doing so: see Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22 at [156].
Outside of the limited circumstances in which a non-delegable duty is found to arise, the 'general rule' is that a defendant is not vicariously responsible for the negligence of an independent contractor: see Leichhardt at [23].
In Bettergrow Pty Ltd v NSW Electricity Networks Operations Pty Ltd as trustee for NSW Electricity Networks operations Trust t/as TransGrid (No. 2) [2018] NSWSC 514 at [69], the Court said: In general, courts have held that a person does not owe a non-delegable duty of care to ensure that reasonable care is taken by an independent contractor, even where the contractor undertakes ultra-hazardous activities: see Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16 at 29-30 per Mason J; [1986] HCA 1; Transfield Services (Australia) Pty Ltd v Hall (2008) 75 NSWLR 12; [2008] NSWCA 294 at [90] per Campbell JA. As Gleeson CJ pointed out in Leichhardt Municipal Council at [23], to impose on a person a duty to prevent each specific act of negligence by a contractor would be to impose an impossible burden on that person. And to do so where the contractor is likely to have specialised skills to undertake the relevant tasks that the person engaging the contractor does not have would be unreasonable.
Neither party identified any previous case in which a non-delegable duty of care was found to exist in circumstances relevantly similar or analogous to those the subject of the present litigation.
With these principles in mind, I now apply them to the facts in this case.
I find that Mr Grinter did not owe Mr Levenspiel a non-delegable duty of care to ensure that his mooring was serviced with due care and skill.
In this respect, I find that the relationship between the parties does not fall within one of the existing relationships where a non-delegable duty is accepted to exist. When I have regard to the case authorities to which I have referred, and noting that neither party identified a factually analogous case to the relationship between Mr Levenspiel and Mr Grinter, I cannot find that the relationship is within one of those existing relationships.
I also find there is no sound doctrinal basis for concluding that any duty owed by Mr Grinter should be non-delegable. There was nothing inherently dangerous or hazardous about the act of servicing the mooring, or indeed connecting the vessel to the mooring, and accordingly Mr Levenspiel's circumstances did not place him in a position of 'special vulnerability'. I therefore see no basis for expanding the existing categories of relationships to include the type of relationship between Mr Levenspiel and Mr Grinter.
I accept that in some circumstances, mooring a marine vessel can pose a particular hazard. But the question is not whether mooring a marine vessel in the manner the subject of this case is, in certain circumstances, hazardous. The question in this case, as Bettergrow makes clear at [66], is whether the activities that were actually carried out were hazardous to Mr Levenspiel. No part of the evidence adduced in this case demonstrated that any of the activities carried out by Mr Grinter were, in the relevant sense, hazardous to Mr Levenspiel. Further, even Mr Ward, the expert marine surveyor called to give evidence in Mr Levenspiel's case, acknowledged that the timing of Mr Grinter's engagement of Brisbane Water Moorings and Mr Clements to inspect and service the swivel, both historically (being approximately every 12 months) and insofar as concerned the more recent service on 8 March 2018, was acceptable.
Insofar as concerns Mr Levenspiel's reliance on the Ports and Maritime Administration Regulation 2012, cl 67ZA imposed a statutory regime in relation to the issue of mooring licences, and the conditions to which mooring licences may be subject. Subclause (3) required licensees to comply with mooring licence conditions. Contravention was sanctioned by criminal penalty.
Whether the contravention of a statutory provision is actionable at the suit of a person injured is a question of statutory interpretation. As a general proposition, a private law cause of action may arise where it can be shown, as a matter of construction of the statute, that the statutory duty was imposed for the protection of a limited class of the public and the legislature intended to confer on members of that class a private right of action for breach of duty: see Field v Dettman [2013] NSWCA 147 at [36]. The private law right is more likely to arise where the purpose of the statute is to protect others from personal injury: see Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 at 405, applied in Dettman at [39], [44] - [45].
The Ports and Maritime Administration Regulation 2012 did not provide Mr Levenspiel with a private cause of action against Mr Grinter because it cannot reasonably be said that the duty imposed by the regulation was designed to protect a limited class of the public. Nor can it be said that the purpose of the duty was to protect others from personal injury. The duty imposed by the regulation was simply to comply with whatever conditions a licence was subject to. The conditions themselves are not set out in the regulation; these are determined by the relevant government authority at the time of issue of the licence (see cl 67Y), and presumably were specific to the mooring and depend on a range of factors, including the type of mooring, the type of vessel to be attached to the mooring, the local surrounds and any relevant environmental considerations. That being so, a breach of licence conditions could conceivably affect a broad range of persons and interests and would not be limited to personal injury.
In any event, even if the regulation did give Mr Levenspiel a private right of action against Mr Grinter, it would still fall to Mr Levenspiel to prove that cause of action (i.e. that Mr Grinter had failed to comply with the conditions of his mooring licence). Mr Levenspiel did not seek to put the licence conditions into evidence, and therefore he is not able to discharge his evidentiary burden in this respect. At the hearing, I made an observation about the absence of the mooring conditions and no satisfactory explanation was provided about why they were not adduced into evidence.
It follows that I do not find that special circumstances, or a special vulnerability, exists on the basis that the situation involved the safety of vessels on the sea, being a notoriously dangerous place, as Mr Levenspiel submitted.
Further, I find there is no pressing practical reason for expanding the categories of relationships in which a non-delegable duty of care has been found to exist to include the type of relationship shared between Mr Levenspiel and Mr Grinter. That relationship can be characterised, in broad terms, as private individual boat owners with nearby moorings. Mr Grinter did not have the requisite skills to undertake the inspection and servicing of the mooring apparatus, including the swivel, as he makes plain in his statement tendered as Exhibit A (see in particular at par [23]). He engaged Brisbane Water Moorings and Mr Clements to undertake this work, and he relied on their knowledge and skill in the execution of their work. Mr Grinter was cross examined and his evidence that he relied on Brisbane Water Moorings and Mr Clements in this way was not undermined.
It is clear that Mr Grinter engaged Brisbane Water Moorings and Mr Clements as independent contractors. The company laid the mooring in 1979 and have continued to service the mooring since that time (see Mr Grinter's statement, Exhibit A, par [14]). Mr Grinter gives instructions to the company to service the mooring over the telephone (see at par [19]). Mr Grinter is not usually present when the mooring is serviced, which is carried out using a barge, with a crane fixed to the barge (see at par [20]). Mr Grinter was not present when the mooring was serviced on 8 March 2018 (see at par [21]). None of this evidence was undermined in cross examination of Mr Grinter.
After the mooring was serviced, Mr Clements, on behalf of the company, issued a tax invoice and, in respect of the work (including the inspection and servicing of the swivel), wrote on the invoice "ALL GOOD" (see Annexure 'C' to Mr Grinter's statement). I am not left with any doubt that the evidence therefore reveals that Mr Grinter engaged Brisbane Water Moorings and Mr Clements as independent contractors, upon whom he relied to inspect and service the mooring, including the swivel.
There is, therefore, also no practical reason for imposing a non-delegable duty of care on Mr Grinter in those circumstances. As Gleeson CJ pointed out in Leichhardt Municipal Council at [23], to impose on a person a duty to prevent each specific act of negligence by a contractor would be to impose an impossible burden on that person. To do so where the contractor is likely to have specialised skills to undertake the relevant tasks that the person engaging the contractor does not have would be unreasonable.
Accordingly, I find that a key ingredient in the cause of action for negligence is absent in this case, namely, that Mr Grinter owed Mr Levenspiel a duty of care in the manner alleged, that is, a non-delegable duty of care. Mr Levenspiel did not argue that an ordinary duty of care was owed by Mr Grinter. Therefore the claim fails.
Given this finding, it is unnecessary to determine any of the remaining questions, including whether, if I were wrong in my conclusion that Mr Grinter did not owe Mr Levenspiel a non-delegable duty of care, there was a breach of duty of care (as well as whether certain items of the claim should be allowed).
As each witness was called to give evidence, and was cross examined, and because the parties made some submissions about the remaining questions, I would have preferred to set out my findings in relation to these matters. However, the course of the litigation was such that it is not appropriate that I express any view about the remaining questions.
In this respect, at the conclusion of the hearing on 8 November 2021, Mr Levenspiel provided extensive closing written submissions, including detailed submissions addressing a number of points about which Mr Grinter wished to be heard, including issues concerning the principles in Jones v Dunkel (1959) 101 CLR 298.
Accordingly, at the end of the hearing on 8 November 2021, at Mr Grinter's request, I made directions providing for the filing and service of any further closing written submissions. Both parties provided further submissions. Those submissions addressed, in some detail, various matters which give rise to a number of questions. The answers to those questions would have informed my consideration of the remaining issues in these proceedings, including whether any breach of duty of care could be proved, and the reasonableness of certain specific items the subject of Mr Levenspiel's damages claim.
As matters presently stand, it would not be possible for me to make a final decision about these matters. Accordingly, in light of my finding that Mr Grinter did not owe Mr Levenspiel a non-delegable duty of care, and given that finding is fatal to his claim, I consider it inexpedient to address the remaining questions, because to do so would require the parties to be recalled to address the Court.
I will make one further and final remark. In these proceedings, Mr Levenspiel adduced evidence from expert marine surveyors. Mr Grinter, likewise, adduced evidence from expert marine surveyors, in addition to expert metallurgical evidence. If the course of the proceedings had run such that the Court was required to resolve the conflicts in the evidence of the experts, this would have been an unnecessarily difficult task because no directions had been made for the joint conferencing of experts, or the preparation of any joint reports of the experts.
This is matter where I consider the parties ought to have sought directions for this to occur. As that did not happen, each expert was called individually to give evidence, and was cross examined in the same way. This is far from desirable, because where expert evidence is to be given in court, this should generally be done concurrently. To facilitate this, parties should be aware of Part 32 of Local Court Practice Note Civil 1, and Part 31.26 of the Uniform Civil Procedure Rules 2005.
Most importantly, the joint report prepared as a result of the joint conferencing of the experts will reveal any matters about which the experts disagree, and their reasons for any disagreement. This information allows the parties, and the Court, to readily understand the real issues in the proceedings, and the questions that have to be answered. It will also aid in the efficient use of Court time, as the experts will give their evidence concurrently rather than individually.

F. EPILOGUE: COSTS AND FINAL ORDERS

After delivering my judgment on 6 December 2021, in which I made the orders set out in par [73] above, Mr Grinter sought an order that Mr Levenspiel pay his costs of the proceedings on the ordinary basis until 12 May 2020, and thereafter on an indemnity basis. This application was brought in reliance on what I said at par [73(3)]. In support of that application, he relied on an affidavit sworn by Michael Valdes on 13 December 2021. Written submissions dated 13 December 2021 were also received.
Mr Levenspiel opposed such an order, and argued there should be no order as to costs in the proceedings: see par [1] of his written submissions on costs dated 20 December 2021. Alternatively, he argued that he should pay Mr Grinter's costs on the ordinary basis (except for the legal costs associated with the evidence of the 'weather expert' and the 'metallurgist expert'): see par [2] of his written submissions on costs dated 20 December 2021. In the further alternative, he says that he should pay Mr Grinter's legal costs on the ordinary basis up to and including 11 October 2021, and thereafter on an indemnity basis, except he should not be liable to pay the legal costs associated with the evidence of the 'weather expert' and the 'metallurgist expert: see par [3] of his written submissions on costs dated 20 December 2021. He relied on an affidavit of Troy Martin affirmed on 20 December 2021 in support of his position.
Both parties agreed on 6 December 2021 for the Court to determine the remaining question of costs 'on the papers' without the need for a further hearing. Accordingly, I have had regard to the evidence and written submissions of the parties as outlined above.
In support of his position resisting Mr Grinter's application for costs, including his claim for indemnity costs, Mr Levenspiel argued the following matters: 1. Mr Grinter's affidavit filed in support of his costs application was an exercise in extravagance thus incurring unnecessary legal costs; 2. There are likely to be legal costs claimed by Mr Grinter which have been unreasonably incurred, are an extravagance and out of all proportion to the issue in dispute, the amount in dispute and the hearing time, relying on Part 42.5 of the Uniform Civil Procedure Rules 2005; 3. Mr Grinter's obligation was to clearly and expressly plead that it was relying on the independent contractor defence, but he did not do so. The amended defence was an exercise in obscuration, and appears to abandon the independent contractor defence by withdrawing the allegation of proportionate liability. It was not until the start of the hearing that Mr Grinter made clear he was relying on the independent contractor defence; 4. Mr Grinter did not serve his undated statement (made in February 2020) until 11 October 2021 which was well after the date ordered by the Court for service of its evidence. This is disentitling conduct; 5. It was not unreasonable for Mr Levenspiel to reject an offer made by Mr Grinter, because at the time of all of the offers (including the 12 May 2020 offer), Mr Levenspiel: 1. Did not have the benefit of any lay evidence from Mr Grinter and was entitled to assume there was none forthcoming given the non-compliance with the Court's directions for service of evidence; 2. Did not have the benefit of the defence accurately pleading the ultimate defence relied upon; 1. It was unnecessary for Mr Grinter to plead the additional defences of 'exceptional and gale force wind and weather conditions' and 'unexpected latent defects'. These defences were an unnecessary extravagance and Mr Levenspiel expects these costs to be in the vicinity of up to $20,000 to $30,000. Further: 1. The legal costs for the 'weather defence' and the 'swivel defect defence' are not proportionate to the importance and complexity of the subject matter in dispute which was for a claim of $38,000 and heard over the course of half a day. This refers to Mr Grinter's pleaded defence, which was abandoned at the hearing, that the cause of the collision was due to adverse weather conditions; 2. Lay evidence could have been given about the weather issues instead of an expert; and 3. Mr Levenspiel, at his cost, provided Mr Grinter with Bureau of Meterorology historical data for wind speed for the time and location of the incident showing that there was no 'extreme weather event', as alleged by Mr Grinter.
My findings on the issue of costs are as follows.
Costs are in the discretion of the Court: see s 98 of the Civil Procedure Act 2005. Part 42.1 of the Uniform Civil Procedure Rules 2005 provides that 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. Accordingly, the starting point is that Mr Levenspiel should be ordered to pay Mr Grinter's costs of the proceedings.
I find that there is no reason to depart from the usual costs order in these proceedings, and further that Mr Levenspiel should pay Mr Grinter's costs on an indemnity basis from 13 May 2020. I do not accept the arguments which Mr Levenspiel advanced in resisting a costs order, or an order for indemnity costs, for the following reasons: 1. The affidavit filed in support of Mr Grinter's costs application was not an exercise in extravagance thus incurring unnecessary legal costs. The affidavit was a relatively modest 4 page document which annexed relevant correspondence and attachments, including the offers of compromise on which Mr Grinter relied in support of his position on the question of costs, which I have considered below. Accordingly, there was no disentitling conduct justifying a departure from the usual order that the unsuccessful party is to pay the successful party's costs; 2. Whether there are 'likely' to be legal costs claimed by Mr Grinter which have been unreasonably incurred, are an extravagance or out of all proportion to the issue in dispute, the amount in dispute and the hearing time, will be a question for a costs assessor, in the event the parties are not able to agree on the quantum of costs to be awarded to Mr Grinter. Further, as explained below, there was no conduct on Mr Grinter's part justifying any 'carve out' of the costs order; 3. The 'independent contractor defence' on which the proceedings have been determined was pleaded in Mr Grinter's defence. Mr Grinter pleaded he did not owe a duty of care to Mr Levenspiel. I accept the full basis for this position was articulated in Mr Grinter's submissions rather than in his pleading, but it was not a defence that could have taken Mr Levenspiel by surprise. In fact it was Mr Levenspiel who argued at the hearing that Mr Grinter owed him a non-delegable duty of care. The Court has found that no such duty was owed, and this has been fatal to Mr Levenspiel's claim; 4. Mr Levenspiel cannot, in the circumstances, reasonably complain about the late service of Mr Grinter's statement. No objection was taken at the hearing to its tender into evidence, and Mr Grinter was cross examined on the content of his statement. Mr Levenspiel is bound by the forensic decisions taken at the hearing, and throughout the course of the proceedings. There is therefore no evidence of any unfairness arising from the late service of his statement; 5. It was not reasonable for Mr Levenspiel to reject the offers of compromise which Mr Grinter had made. On 12 May 2020, Mr Grinter served Mr Levenspiel with an offer of compromise that offered to settle the proceedings on the basis that Mr Grinter pay Mr Levenspiel $10,000 plus Mr Levenspiel's costs as agreed or assessed. The offer was open for acceptance by Mr Levenspiel for 28 days, until 9 June 2020. The offer was made in accordance with Part 20.26 of the Uniform Civil Procedure Rules 2005. Mr Levenspiel did not accept the offer. Mr Levenspiel did not receive a judgment more favourable that Mr Grinter's offer. On the contrary, the outcome was substantially less favourable; 6. Part 42.15A of the Uniform Civil Procedure Rules 2005 sets out the circumstances in which a defendant may be entitled to indemnity costs if they make an offer of compromise which is reject by the plaintiff, and the defendant obtains a judgment 'no less favourable' than the terms of the offer. If the circumstances outlined in Part 42.15A(1) are established, the defendant is entitled to indemnity costs form the date after the offer was made 'unless the court orders otherwise'. I am satisfied that Mr Grinter's offer was a genuine compromise. At the time the offer was made, Mr Grinter had made it known that he denied liability, yet offered to pay Mr Levenspiel approximately one-third the value of his claim, plus his legal costs, in order to achieve a negotiated settlement. Further, having regard to Part 20.26(5)(a) of the Uniform Civil Procedure Rules 2005, the 28 day period during which the offer was open for acceptance was a reasonable one; 7. Mr Grinter made further offers of compromise on 7 July 2020 and 8 March 2021, which were ultimately not accepted by Mr Levenspiel, however the determination of the indemnity costs claim in this matter turns on the first offer of compromise made on 12 May 2020. The fact that Mr Grinter's lay evidence had not been served at the time the offer was made is not relevant. Mr Levenspiel was required, upon receipt of the offer, to make his own assessment of his prospects. It was his claim, and he bore the onus of proof at all times to prove each element of his claim, including on the issue of duty of care. Further, for the reasons I have already outlined, I do not consider that the content of Mr Grinter's defence, as it existed at the time the offer of compromise was made on 12 May 2020, in any way causes me to conclude that it was not unreasonable for Mr Levenspiel to reject the offer; 8. The costs order should not exclude the costs associated with the pleaded defences concerning adverse weather conditions and unexpected latent defects in the swivel. Costs should only be apportioned in the most exceptional of circumstances and litigants should not be discouraged from canvassing all material issues for fear of an adverse costs order: see McLaughlin v Dungowan Manly Pty Ltd [2010] NSWSC 306 at [20] - [25]. Mr Grinter obtained and served a written report from an expert meteorologist (which Mr Levenspiel labelled as the 'weather expert' as referred to above). Mr Levenspiel did not prepare evidence in response. At the final hearing, Mr Grinter elected not to rely on the meteorologist's report. In these proceedings, the Court found that Mr Levenspiel failed to prove his case and no adverse consequence should flow from the fact that Mr Grinter explored, but ultimately did not press, a particular defence that had been raised. Further, the case was ultimately determined on the single issue of whether Mr Grinter owed Mr Levenspiel a non-delegable duty of care, and it was unnecessary for the Court to make findings on the various issues thrown up by the expert evidence, including the expert marine surveying evidence and the expert metallurgical evidence. Accordingly, this case cannot be characterised as an 'exceptional' one in which costs should be apportioned.
For this combination of reasons, Mr Levenspiel should be ordered to pay Mr Grinter's costs of the proceedings on the ordinary basis up to 12 May 2020 and on an indemnity basis from 13 May 2020.
Mr Grinter has also been successful in his costs application. Mr Levenspiel contested the proposed costs order, and the both parties have been put to the expense of addressing this issue. Further, I repeat my findings above at par [80(1)], namely, that the affidavit filed in support of Mr Grinter's costs application was not an 'exercise in extravagance'. Accordingly, costs should follow the event in relation to the determination of the costs application.
Accordingly, the final orders of the Court are as follows: 1. Judgment and verdict for the Defendant; 2. Plaintiff's Statement of Claim filed 8 November 2019 is dismissed; 3. The Plaintiff is to pay the Defendant's costs of the proceedings on the ordinary basis up to 12 May 2020; and 4. The Plaintiff is to pay the Defendant's costs of the proceedings on an indemnity basis from 13 May 2020 (including the costs of the costs application). Magistrate Scott Nash Gosford Local Court 22 December 2021

Levenspiel v Grinter

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Judgment (7 paragraphs)

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Cases Cited (17)