Schmidt J, Rothman J, Adamson J, September Adamson J
Catchwords
[1998] HCA 11
Re Minister for Immigration & Ethnic Affairs (Cth)
Ex Parte Lai Qin (1997) 186 CLR 622
Source
Original judgment source is linked above.
Catchwords
[1998] HCA 11
Re Minister for Immigration & Ethnic Affairs (Cth)Ex Parte Lai Qin (1997) 186 CLR 622
Judgment (2 paragraphs)
[1]
Judgment
These proceedings were commenced by summons in September 2016, when orders were sought requiring the defendant solicitors to provide Ms Nitopi with certain documents which they held, having acted for her in both Equity and Common Law proceedings brought in this Court in 2014, as well as a bill for outstanding costs, in circumstances where on her case, the costs of the Equity proceedings had been paid in full. An order for indemnity costs was also sought.
Now in issue are the costs orders which should be made, the proceedings otherwise having been resolved.
On 28 September 2016 Adamson J made ex-parte orders as to service and production of identified documents by 2pm on 30 September. On 30 September Adamson J ordered by consent:
"(1) The defendant produce to the plaintiff the files and documents kept in regard to acting for the plaintiff in the Equity Division Probate List proceedings numbered 2014/327528 today.
(2) The defendant produce to the plaintiff the files and documents kept in regard to acting for the plaintiff in this Division in proceedings numbered 2015/94733 upon the plaintiff paying $63,801.91 into Court on account of the costs and disbursements claimed by the defendant against the plaintiff for acting in the matter.
(3) The proceedings be adjourned to the Registrar's list at 9.00am on 24 October 2016.
(4) Vacate order 6 made on 28 September 2016.
(5) Costs of these proceedings reserved."
Her Honour also noted:
"(6) That the defendant's costs referred to in order 2, above, are to be assessed.
(7) The plaintiff pay the monies referred to in order 2, above, into Court by 21 October 2016.
(8) The defendant today had available for production to the Court the documents referred to in order 6 made on 28 September 2016."
Nitopi v Translawcom Pty Ltd t/as Brander Smith McKnight [2017] NSWSC 1421 | Case summary | Zoe
On 28 October 2016 Ms Nitopi served a notice to produce. Documents were produced in November. On 8 November Ms Nitopi's solicitors advised that it was expected that she would not make a payment into court in accordance with order (2), but would await assessment of the costs.
On 18 November 2016 Ms Nitopi filed her motion and on 13 December 2016 the defendant solicitors filed theirs, it having been ordered on 24 November, that if a stay was sought regarding the common law files, a motion and supporting affidavit should be served.
The orders sought by Ms Nitopi were:
"1. An order for the better enforcement of Order 1 made on 30 September 2016:
(a) That the Defendant to provide to the Plaintiff with 7 days a copy of all documents created, received or saved in LEAP matter number 15718, or any other matter number pertaining to Cristina Pirrello Nitopi in her capacity as Executor of the Estate of the Late Egidio Nitopi;
(b) That for the purposes of Order 1 (a) above, the Defendant provide such documents by digital copy of an export of all documents from the LEAP documents file 12718 or any other matter number pertaining to Cristina Pirrello Nitopi in her capacity as Executor of the Estate of the Late Egidio Nitopi, which can be obtained by entering the appropriate file, selecting ALT -M, and then selecting 'Export All Documents..';
(c) Reserve for further consideration and grant liberty to apply in respect of such further orders as may be necessary for the enforcement of the Plaintiff's rights in this matter.
2. An order that the Defendant pay the Plaintiff's costs of these proceedings, including the costs of this motion.
3. An order that the costs of this motion be ordered on an indemnity basis with the costs of balance of the costs of the proceedings being ordered on a party-party basis."
The orders sought by the defendant solicitors were:
"1 These proceedings, case number 2016/290524, be stayed until further order.
2 The plaintiff is to pay the defendant's costs of the proceedings to date, such costs as agreed or assessed to be payable forthwith.
3 Such further or other orders as the Court considers appropriate."
On 21 March and 24 March 2017 the matter came before Rothman J, who ordered that:
"1. Vacate order 2 of 30 September 2016 and in lieu thereof insert a new Order 2 in following terms:
'2 a. The Plaintiff pay $63,801.91 into Court by 4pm 28 March 2017;
b. Upon payment into Court of the amount of $63,801.91 the Defendant shall produce to the Plaintiff the files and documents kept in regard to acting for the Plaintiff in this Division in proceedings 2015/94733 and in order to avoid any controversy, if payment is made in accordance with 2(a) above, the documents shall be produced on or before 12noon, 29 March 2017.'
2. By 4pm, 29 March 2017, the Defendant shall file and serve a schedule of documents not produced to the Plaintiff as a result of the alleged compliance with Order 1 of the Orders of 30 September 2016 and all other evidence upon which the Defendant will rely on the motions.
3. By 4pm 29 March 2017, the Plaintiff shall file and serve all evidence upon which it would seek to rely in the hearing of the motions for the production of the remaining items.
4. By 4pm, 30 March 2017 the Plaintiff and Defendant shall file and serve a written outline of submissions.
5. The matter be listed for hearing before the Registrar at 9am Friday, 31 March 2017 for allocation of an urgent hearing."
A timetable for an argument as to costs, when the other outstanding issues were resolved by the parties was later fixed.
Ms Nitopi's solicitor Mr Streeter swore an affidavit on 5 May 2017, in which he deposed to having been served with a bundle of documents on 29 March 2017, comprising some 5,000 pages, as well as a controlled money movement ledger dated 5 April and a brief to Ms Melbourne, relevant to the Equity Probate matters.
Mr Streeter deposed that perusal of those documents disclosed that other documents existed, which were in the defendant solicitors' possession and control. Provision of those documents was pursued by emails sent on 30 March 2016. Further documents were then provided by hand and by email.
Perusal of those further documents revealed the existence of other missing documents. Provision of those documents was pursued on 7 April 2016. Additional documents were then purportedly provided, but instead, documents earlier provided were resent by email. Further documents were provided under cover of a letter of 11 April, which had not previously been provided. Perusal of those documents revealed that there were still further missing documents.
On 18 April further documents believed to comprise the Probate file were sought. Additional documents were provided on 21 April 2016. Mr Streeter was still unsure that the Probate file in its entirety had been provided. He also had doubts that the defendant solicitors could be relied on to produce the file in full at any time in the future.
Mr Streeter was not required for cross-examination, nor was Mr Smith, a director of the defendant solicitors who swore an affidavit on 15 May 2017, in which he referred to earlier affidavits he had sworn. It is not necessary, in those circumstances to attempt to resolve all that was advanced by the parties, as to the conduct of the proceedings, which included on the part of the defendant solicitors, a failure to appear at certain directions hearings in 2017.
In his affidavit Mr Smith deposed to the termination of the retainer in August 2016 by email; advice given in September as to outstanding costs and disbursements of some $63,801.91; and what was proposed as to the release of Ms Nitopi's documents and files relating to proceedings on foot in both the Common Law and Equity divisions, upon payment.
There was then a disagreement as to the defendant solicitors' right to exercise any lien, given payments Ms Nitopi had already made. The result was the commencement of these proceedings in September.
Payments were made by Ms Nitopi on 28 March and on 29 March 2017 and documents "pertaining to" the estate file and the common law file were provided by the defendant solicitors. Documents were also provided in relation to the Probate file, which Mr Smith maintained had previously been provided in its entirety. The application for further production listed for hearing on 26 April was then resolved between the parties, without further hearing.
On 21 July 2017 the costs hearing was adjourned, Rothman J's reasons for the orders made on 23 March still being awaited. They were delivered on 31 August: Nitopi v Translawcom Pty Ltd t/as Brander Smith McKnight [2017] NSWSC 1156. The parties later provided further written submissions.
The usual order under r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) is that costs, as agreed or assessed, follow the event.
The costs orders initially sought by Ms Nitopi were that the defendant solicitors pay her costs of the proceedings. Those finally pressed were:
"[1] Each party to bear their own costs of the hearing on 21 March 2017.
[2] Each party to bear their own costs of the hearing on 24 March 2017.
[3] The defendant's Notice of Motion filed 8 December 2016 be dismissed with the defendant to pay the plaintiff's costs of that motion.
[4] The plaintiff's Notice of Motion filed 18 November 2016 be dismissed with the defendant to pay the plaintiff's costs of that motion.
[5] The defendant to pay the plaintiff's costs of the proceedings."
The orders pressed by the defendant solicitors were:
"1. The plaintiff pay the defendant's costs of the proceedings, with the exception of those costs of and incidental to the notice of motion filed on 8 December 2016 on behalf of the plaintiff.
2. No order as to costs in respect of the notice of motion filed on 8 December 2016 on behalf of the plaintiff.
3. The summons be dismissed."
In his judgment Rothman J explained at [26] - [31]:
"26 Applying the ordinary rules to the Orders and bearing in mind that the parties obtained Consent Orders for the purpose of resolving most (but not all) of the issues between them, one must examine and construe the Orders of the Court issued as a result of the agreement of the parties. At least the assessment of costs in the Common Law matter remained outstanding.
27 Otherwise, the issues between the parties were resolved. The Respondent now says it no longer (if ever) wishes to have the file in the Common Law matter and, as a consequence, did not pay the money into Court. As earlier stated, the Respondent says the Notation does not oblige payment, but, if payment were made into Court, the Applicant would, thereupon, be obliged to deliver the Common Law file.
28 The difficulty with such a proposition is that it would defeat the purpose of resolving the issues between the parties. The justiciable controversy between the parties included a claim by the applicant for the payment of fees for work done and the Applicant's claim for a lien over the files in both the Equity and Common Law proceedings, until the fees were paid.
30 The Court noted the proposition that the Respondent pay the money into Court by 21 October 2016. If, as is suggested, no payment was, under the agreement between the parties, required, why would there be a date stated by which payment was to be made? I have taken the view that the clear intention of the parties, from the terms of the Orders, was that payment was to be made and, once made, the Common Law files were required to be delivered.
31 Further, the terms of the Notation recite a representation by the Respondent as to the Respondent's conduct and the date by which payment was to be made. That payment formed part of the consideration for the issuing of Consent Orders and the Applicant acted to its detriment by giving up the Equity file inconsistently with its claim. Having made the representation, the Respondent is estopped from denying its accuracy: Legione v Hateley (1983) 152 CLR 406; [1983] HCA 11 distinguishing Jorden v Money (1854) 5 HLC 185; Walton Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1988] HCA 7; Commonwealth v Verwayen (1990) 170 CLR 394 at 430 (Brennan J); 500 (McHugh J); [1990] HCA 39."
On this history it is apparent that the result of the proceedings Ms Nitopi brought, on the basis that the defendant solicitors never had any entitlement to assert a lien over the Equity proceeding documents, was that she succeeded in having the documents in issue produced. In not paying into Court the $63,801.91 referred to in order 2 of the orders made by Adamson J on 30 September 2016, in relation to the Common Law proceedings, Rothman J found that she had breached what had been agreed.
The defendant solicitors' application to have the proceedings stayed failed, but Rothman J's 24 March orders not only required Ms Nitopi to pay that sum into Court by 28 March, but also that the defendant solicitors produce the outstanding files and documents, which should have been produced in response to order 1 made by Adamson J in September 2016. The position then was that if any issue remained as to the production of other documents, a timetable for argument on that issue was imposed.
The result of Rothman J's orders was finally that the outstanding payment into Court was made by Ms Nitopi, further documents were produced by the defendant solicitors and the parties resolved what remained in issue between them, apart from costs.
There is no question that costs orders can reflect that a party may have succeeded on some issues and failed on others, including where a party has pursued an issue unreasonably: Oshlack v Richmond River Council (1998) 193 CLR 72 at 122; [1998] HCA 11. Further, costs orders may be made even in cases which are resolved by compromise, where "a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order: Re Minister for Immigration & Ethnic Affairs (Cth); Ex Parte Lai Qin (1997) 186 CLR 622 at 624; [1997] HCA 6.
Thus while a court cannot try a hypothetical action, "in an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action": Lai Qin at 624. If, for example, the court concludes that one of the parties has acted so unreasonably that the other party should obtain a costs order, or if it feels "confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried": Lai Qin at 625.
In this case, given the documents finally produced by the defendant solicitors and the payment finally made into court by Ms Nitopi, after Rothman J's orders, it seems that Ms Nitopi acted reasonably in bringing the proceedings, however she did not act reasonably when she failed to make the agreed payment into court. For their part, while the defendant solicitors acted reasonably in pursuing the agreed payment into court, their production of the documents Ms Nitopi sought did not occur as had been agreed and ordered by Adamson J in 2016. That resulted in the steps which Ms Nitopi successfully pursued, which finally achieved the production she was satisfied with.
As discussed by Hodgson JA in Turkmani v Visvalingam (No 2) [2009] NSWCA 279 at [13] whether there should be a departure from the ordinary costs rule should be:
"13 … approached having regard to the idea of fairness underlying the making of costs orders, which I expressed as follows in Commonwealth of Australia v Gretton [2008] NSWCA 117 at [121]:
[121] In my opinion, underlying both the general rule that costs follow the event, and the qualifications to that rule, is the idea that costs should be paid in a way that is fair, having regard to what the court considers to be the responsibility of each party for the incurring of the costs. Costs follow the event generally because, if a plaintiff wins, the incurring of costs was the defendant's responsibility because the plaintiff was caused to incur costs by the defendant's failure otherwise to accord to the plaintiff that to which the plaintiff was entitled; while if a defendant wins, the defendant was caused to incur costs in resisting a claim for something to which the plaintiff was not entitled: cf Ohn v Walton (1995) 36 NSWLR 77 at 79 per Gleeson CJ. Departures from the general rule that costs follow the event are broadly based on a similar approach."
I consider that the proper application of these principles in this case, so as to achieve justice between these parties, given what they respectively won and lost, is to order that:
1. The defendant pay Ms Nitopi's costs of the proceedings, except for the costs of the defendant's motion of 13 December 2016 and the hearing before Rothman J on 21 and 24 March 2017;
2. Ms Nitopi is to bear the costs of the defendant's motion of 13 December 2016;
3. Each party is to bear their own costs of the hearing on 21 and 24 March 2017.
[2]
Amendments
20 October 2017 - formatting issues corrected
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Decision last updated: 20 October 2017