On 13 August 2021, for the reasons which I gave in an ex tempore judgment, I ordered that the plaintiff provide to the 2nd defendant, Cornish Group Spring Farm Pty Ltd (the "Cornish Group"), a list of Group Members who had notified the plaintiff of their interest in the proceedings, or else who had registered as Group Members, and whose properties had suffered physical damage due to subsidence.
Cornish Group has sought an order, as has Camden Council, that the plaintiff pay their costs of the Notice of Motion filed on 20 July 2021 which resulted in the orders which I have shortly described above.
This judgment deals with the application for costs of that Notice of Motion.
As explained in the first judgment: Moussa v Camden Council [2021] NSWSC 1109, I thought that it was in the interests of justice and that it would promote the overriding purpose in s 56 of the Civil Procedure Act 2005 for the plaintiff to provide the name and address details of the relevant group members to the Cornish Group.
[2]
Applications for Costs
The Cornish Group applies for costs of the Notice of Motion filed on 20 July 2021, essentially on the basis that it was successful on that Motion and that there are no discretionary reasons as to why costs would not follow the event. The Cornish Group seek the costs be payable forthwith.
Camden Council accepts that the Notice of Motion did not involve it seeking any orders, and that the only orders sought by the Cornish Group were against the plaintiff. It submits that nevertheless, it had prepared for the Motion, appeared on the hearing and supported the submissions of the Cornish Group. It submits that the Motion was only necessary because of the plaintiff's failure to agree on reasonable terms for the resolution of the Motion and to insist on a communications protocol which was unworkable.
I note that prior to the ex tempore judgment being given, Camden Council applied for an order that the names of the relevant registered Members be also made available to it. That application was refused.
[3]
Plaintiff's Submissions
The plaintiff submits that the starting point for the consideration of the determination of the appropriate order for costs of all interlocutory proceedings is that set out in r 42.7 of the Uniform Civil Procedure Rules 2005 ("the UCPR"). The plaintiff submits that the ordinary usual order is that each party pay their own costs of interlocutory proceedings unless the Court otherwise orders. The plaintiff submits that there is nothing about their conduct which would lead the Court to make any order different from that usually made in accordance with r 42.7.
Rule 42.7 is in the following terms:
"42.7 Interlocutory Applications and reserved costs
(1) Unless the court orders otherwise, the costs of any application or other step in any proceedings, including:
(a) costs that are reserved, and
(b) costs in respect of any such application or step in respect of which no order as to costs is made
are to be paid and otherwise dealt with in the same way as the general costs of the proceedings.
(2) Unless the court orders otherwise, costs referred to in subrule (1) do not become payable until the conclusion of the proceedings."
[4]
Discernment
I do not accept that r 42.7 of the UCPR carries with it the universal meaning contended for by the plaintiff. For example, Ward J in Crown in the right of State of New South Wales v Geraux [2011] NSWSC 758, said at [11] that the general rule provided for in Rule 42.7 "… is that costs follow the event". Nor does the decision of the Court of Appeal in His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand & Anor v The Macedonian Orthodox Community Church St Petka Incorporated & Anor (No 2) [2007] NSWCA 142 at [16]-[28] suggest that the interpretation of r 42.7 is always as the plaintiff submits.
In my view, the meaning and effect of r 42.7 is that when a court having heard an interlocutory application either makes no order at all as to the costs of that application, or else reserves the costs of that application, then any of the costs of, and related to, that application form part of the general order for costs made at the conclusion of the proceedings, in the absence of a different and specific order. In my opinion, r 42.7 does not indicate that the ordinary rule is that each party pay its own costs of any interlocutory application. On the contrary, r 42.7 seeks to align all interlocutory proceedings in respect of which no specific order has been made that one party or the other is to pay the costs of the proceedings, with the general order for costs made in due course at the end of the proceedings.
The plaintiff's submissions carried with it the unstated proposition that r 42.1 of the UCPR, which is in the following form:
"42.1 General rule costs follow the event
Subject to this Part, if the court makes any order as to costs, 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."
is directed solely to the order for costs which is made at the conclusion of the final hearing of the proceedings. There is no warrant to read that rule down in that way, particularly as the rule uses the adjective "any" to qualify "order as to costs". That is apt to refer to costs of interlocutory steps, as well as any final costs order.
Accordingly, in my view, the starting point for the consideration of the issue as to which party, if any, ought pay the costs of the orders made in the judgment to which I have referred, is that costs follow the event.
Insofar as the Cornish Group is concerned, the purpose for which they wanted the court's order was to enable their repair proposal to be put to the relevant Group Members. The alternative to seeking a court order was for the Cornish Group to either send a letter or notice of the proposal to every householder in the Spring Farm area in those parts which the Cornish Group had developed, or else to deploy a team of employees to door-knock all of the houses in the same areas. Clearly, either of these methods would be expensive and time consuming.
The plaintiff's refusal to agree to the provision of that list was not only on the basis that, because of confidentiality constraints, they were unable so to do, but rather was on a number of different bases. The plaintiff wanted to obtain the consent of the individuals first; the plaintiff wanted to have a communication protocol agreed upon; the plaintiff wanted the opportunity to suggest changes to the correspondence. These were all matters which seem to me to be additional to, and not intrinsically related to, the application by the Cornish Group. On each of those issues, the plaintiff lost, and the Cornish Group ultimately obtained the order which they sought.
In those circumstances, I am satisfied that costs should follow the event and that the plaintiff should be ordered to pay the Cornish Group's costs of the Notice of Motion dated 20 July 2021.
I add that in the event that I am wrong in my interpretation of r 42.7 and that the usual starting point for orders for costs of interlocutory proceedings is as the plaintiff contends, namely that each party should pay their own costs unless the Court orders otherwise, in the circumstances here I would exercise my discretion in the same way. In my view, the plaintiff's attitude to the orders sought by the Cornish Group as I have shortly described in [15] above, supported by the submissions of counsel was an unreasonable attitude to take, and to persist in. This is a sufficient basis for the Court to make an order which differs form the usual starting point.
As to the claim by Camden Council for its costs of the Notice of Motion, I regard it as without merit. Camden Council did not participate in the Motion. It did not need to spend any money preparing for it. It was not affected by, or concerned in, the orders which were sought. At the end of hearing of the Motion, it sought an additional order, namely that it too should have the names of the relevant Group members, but could advance no compelling reason why that should be so. In my view, the appropriate order for costs of Camden Council is that it should pay its own costs of the Motion.
The Cornish Group seeks an order that the costs should be payable forthwith. I am not prepared to make that order. There is no reason to conclude that this interlocutory dispute was of a kind where it is necessary, or appropriate, to make such a "forthwith order". Although the relief was opposed, and in the absence of my overall concern about the future management of the matter proceeding with reasonable expectations, there is no justification for making an order that the costs be payable forthwith.
[5]
Orders
I make the following orders:
1. Order the plaintiff to pay Cornish Group Spring Farm Pty Ltd's costs of the Notice of Motion filed 20 July 2021.
2. Order Camden Council to pay its own costs of that Notice of Motion.
[6]
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Decision last updated: 05 October 2021