MGIL Pty Limited v Maria Di Giannantonio as Executrix of the Deceased Estate of Michele Di Giannantonio

Supreme Court of NSW|2013-09-10|Before: Bellew J, Stuart J

INTRODUCTION 1On 19 August 2013 I delivered judgment in these proceedings (M.G.I.L. Pty Ltd v Maria Di Giannantonio as executrix of the Deceased Estate of Michele Di Giannantonio [2013] NSWSC 1113). On that occasion I made a number of orders, including an order remitting the matter to the Local Court to be further dealt with according to my reasons. The primary basis on which I made that order was that I concluded that the Magistrate's reasons were inadequate. 2On that occasion I made a further order that the defendant was to pay the plaintiff's costs. 3Subsequently, correspondence was received from the plaintiff's solicitor drawing my attention to the fact that in the amended summons the plaintiff had sought an order that the defendant pay the plaintiff's costs of the Local Court proceedings, as well as the costs of the hearing before me. That correspondence incorporated, in effect, a request for the making of a further order pursuant to r 36.17 of the Uniform Civil Procedure Rules that the defendant pay the plaintiff's costs of the Local Court proceedings. 4In response, counsel for the defendant indicated (inter alia) that he wished to make an application that the defendant be granted a certificate pursuant to the Suitors' Fund Act 1951, in respect of the order that I had made against her for the payment of the plaintiff's costs. 5It was in these circumstances that the matter was re-listed before me today. I received, prior to today, written submissions from each party outlining their respective positions. Each party also made oral submissions. 6In addition to seeking an order that the defendant be granted a certificate under the Suitors' Fund Act, a submission was made that I should limit any order for the plaintiff's costs of the appeal to one requiring the payment of 50% of those costs as agreed or assessed, with such percentage not to exceed a sum of $10,000.

THE SUBMISSIONS OF THE PARTIES 8As to the first issue, counsel for the defendant submitted that although the plaintiff had succeeded in the appeal before me, a number of the grounds which had been pursued in the course of the hearing of that appeal had in fact not been made out. Accordingly, he submitted, it could not be said that the plaintiff had succeeded on the whole of its appeal. 9Counsel for the defendant also pointed out that the plaintiff's amended summons in fact sought the entry of judgment in the plaintiff's favour. As I understood it this submission amounted to the proposition that the plaintiff, in this respect as well, had not succeeded in obtaining the relief which it had sought, although it was fairly conceded by counsel for the defendant that it is not uncommon in a matter of this nature for there to be a variance in terms of the orders ultimately made in comparison with those sought in the originating process, and that the orders may ultimately depend upon whether the matter has to be remitted. 10Counsel for the defendant informed me that he had been advised that the plaintiff's costs amounted to approximately $38,000.00. He submitted that the limit of the indemnity provided by a certificate under the Suitors' Fund Act, namely an amount of $10,000, reflected an intention that such a sum would be sufficient to cover the costs of a case such as the present in which a certificate was issued. This, he submitted, provided further support for the making of the order sought. 11In his written submissions, counsel for the plaintiff submitted that the plaintiff had succeeded in the appeal and that in these circumstances costs ought follow the event. The plaintiff's solicitor, who appeared before me and made oral submissions today, further argued that it would have been open to the defendant to have filed a submitting appearance in the proceedings but that the defendant had chosen not to do so. In these circumstances he repeated the submission which had been made in writing by counsel that costs should follow the event. In doing so, he argued against the proposition that the costs should be limited in the way in which counsel for the defendant contended. In what appeared to be some attempt to justify the amount of costs incurred, the defendant's solicitor pointed out that there were not insubstantial filing fees included in the sum which had been referred to in the course of argument. 12As to the second issue, counsel for the defendant submitted that the appropriate order was that the costs of the Local Court proceedings be at the discretion of the Magistrate upon the final determination of the proceedings following their remittal. In this regard counsel relied on my observations in relation to a similar issue in Getex Pty Ltd v Reed Business Information Pty Ltd & Ors (No. 2) [2013] NSWSC 1271. In that case I came to the view, having considered the matter, that an order leaving the costs of the Local Court proceedings at the discretion of the Magistrate was appropriate. 13The plaintiff's solicitor submitted that upon a proper application of the principle that costs follow the event, there was no reason why the plaintiff ought not have its costs of the Local Court proceedings, as well as the proceedings in this Court. He submitted that the range of possibilities in terms of the ultimate outcome of the matter supported the making of such an order.

CONSIDERATION AND CONCLUSION 14I must admit to being somewhat surprised that a case which was conducted over a period of less than a day in the Local Court, and less than one day before me, could reasonably have generated costs in the amount which has been suggested before me today. However whether those costs are reasonable will, absent any agreement between the parties, ultimately be a matter for someone else to determine. 15Generally speaking, it will be appropriate to award the costs of proceedings to the successful party without attempts to differentiate and distinguish between those issues upon which it was successful, and those issues upon which it failed (see for example Waters v PC Anderson (Australia) Pty Ltd [1994] NSWCA 338). However, the provisions of s. 98(4)(b) of the Civil Procedure Act 2005 confer a discretion on the Court to make an order of the kind that is sought by the defendant in the present case limiting the plaintiff's costs, if the circumstances are appropriate for it to do so. 16It is correct to observe that in the present case the plaintiff did not succeed on all of the grounds of appeal which were pleaded in the summons. That said, it did succeed on several of those grounds. Those grounds on which it did not succeed did not, in my view, have the effect of adding to the length or the complexity of the hearing before me. In fact as the judgment reflects, although there were 14 grounds of appeal in total, many of them raised the same issues and for the sake of convenience were grouped and dealt with together. 17In these circumstances I do not think it appropriate to exercise my discretion under s 98(4)(b) and make the order which has been sought by the defendant. I do not consider that the limitation of the indemnity contained in the Suitors' Fund Act supports the making of the order sought. 18As to the second issue, in my judgment in Getex (supra) commencing at paragraph [15] I set out, by reference to a number of authorities, the general rule which applies in a case where a new trial is ordered following the hearing of an appeal. In the present case, as was the case in Getex, what has been ordered is a remittal of the matter to the Local Court. That is not in a strict sense a new trial, although in my view the authorities to which I referred in Getex are nevertheless applicable to such circumstances. 19In Brittain v The Commonwealth (No. 2) [2004] NSWCA 427 Tobias JA made reference to a series of authorities governing the application of the general rule. In a subsequent decision of Monie v Commonwealth of Australia (No. 2) [2008] NSWCA 15 Campbell JA confirmed the correctness of the proposition that when a new trial is ordered the costs of the first trial are often ordered to follow the event in the new trial. However, like Tobias JA in Brittain, Campbell JA acknowledged that departures from that general rule may be justified in an individual case, where application of the general rule might otherwise visit an injustice upon a party. 20In the present case both parties appear to agree that there should be a departure from the general rule. However, the nature and extent of that departure is a matter of dispute. Counsel for the plaintiff, pressed for an order that the defendant pay the plaintiff's costs of the Local Court proceedings. Counsel for the defendant submitted that the appropriate order was that the costs of the Local Court proceedings remain within the discretion of the Magistrate, such discretion to be exercised at the conclusion of the proceedings. 21As I have noted, the solicitor for the plaintiff argued that the order he sought was justified because several issues remained to be determined and there were therefore several possibilities as to the ultimate outcome of the proceedings. Accepting that be the case, that is a factor which in my view tends against the order sought by the plaintiff, rather than being a factor which supports it. In my view the question of the costs in the Local Court proceedings is a matter which is more appropriately determined by the Magistrate, at a time when all issues are determined to finality. 22For those reasons, I make the following orders: (1)In respect of the order at paragraph 136 of my judgment of 19 August 2013, the words "of the proceedings in this Court, as agreed or assessed" are added so that the order of the Court is: "The defendant is to pay the plaintiff's costs of the proceedings in this Court, as agreed or assessed". (2)In respect of the order in paragraph (1) herein, the defendant is to have a certificate pursuant to the provisions of the Suitors' Fund Act 1951, if so qualified. (3)The costs of the entirety of the proceedings in the Local Court are to be at the discretion of the Magistrate at the conclusion of those proceedings.

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: 11 September 2013

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