Taylor v Owners - Strata Plan No 11564

Judgment 1THE COURT: Ms Susan Joy Taylor, acting on her own behalf and on behalf of dependants of the late Craig Taylor, sought leave to appeal from an interlocutory judgment of Garling J in the Common Law Division. The Court granted leave, but, by a majority, dismissed the appeal: Taylor v Owners - Strata Plan No 11564 [2013] NSWCA 55. The Court made the following order as to costs: 4. Appellant to pay the first-fourth and sixth respondents' costs of the application for leave to appeal and of the appeal. 2Judgment was delivered on 18 March 2013. On 28 March 2013, within the 14 day period permitted by the Uniform Civil Procedure Rules 2005 (NSW), r 36.16(3A) for variation of an order which has been entered, the appellant filed a motion seeking a variation of the order as to costs. In an amended motion filed 15 April 2013 the appellant sought the following orders: 1. Vary order 4 to "Appellant to pay 50% of the costs of the First-Fourth and Sixth Respondents". 2. Alternatively, vary order 4 in such terms as the Court sees fit limiting the costs the Appellant is ordered to pay ... to one set of costs only (for the First to Fourth and Sixth Respondents). 3. Disallow the First to Fourth and Sixth Respondent's costs of the undated written submissions ... which were produced at the hearing of the appeal on 6 December 2012 but not read .... 3The alternatives proposed by orders 1 and 2 were that the appellant pay one set of costs, either to be divided between the respondents as they saw fit, or providing that the first four respondents (appearing by common counsel) and the sixth respondent (which appeared by separate counsel) should each receive 50% of their costs. 4On the assumption that only one set of costs should be payable, it is not appropriate for this Court to enter into the debate, as to which the respondents have taken no position, as to how that set of costs should be divided. Accordingly, proposed order 1 should not be made. 5The basis upon which the appellant seeks a single order as to costs is that she considered that the respondents "need not be separately represented" and notified them that "objection will be taken to more than one set of costs being allowed between them", in accordance with UCPR, r 51.4(5). 6In Statham v Shephard (No 2) (1974) 23 FLR 244 at 246, Woodward J stated the general principle that, subject to three provisoes, "the court will not normally allow two sets of costs to defendants where there is no possible conflict of interest between them in the presentation of their cases". The first proviso reduced the severity of the "no possible conflict" test, saying that the defendants should make enquiries from the plaintiff if a conflict appeared possible but unlikely. The second proviso was that the defendants might be acting reasonably in remaining at arm's length despite their united opposition to the plaintiff, even, apparently, in the case of "no possible conflict of interest". Whether that proviso was added from an abundance of caution and would generally have no operation need not be determined. It was limited by the third proviso which stated that even if the defendants were acting reasonably in maintaining separate representation "for some time or for some purposes, they may still be deprived of part of their costs if they act unreasonably by duplicating costs on any particular matter or at any particular time". It might be added that, even if they did not duplicate costs, they would not necessarily obtain separate costs orders if the expense incurred was not one which should reasonably have been borne by the plaintiff. 7In Credit Lyonnais Australia Ltd v Darling (1991) 5 ACSR 703 Kirby P commented obiter on the rules now found in Part 51.4, which had been introduced into the Supreme Court Rules 1970 (NSW) between the hearing of the appeal in that case and the delivery of judgment. He noted that the new rules "make provision for an objection to the cost of separate representation being taken in the first place by an appellant": at 710. The President further noted, though apparently speaking in relation to the general costs rules, as in force before the amendments were made: "The proper time to raise such an objection is in advance of, or at, the hearing. Being alerted to the fact that the respondents were separately represented, if the appellant wished to take this point, it should have done so by giving notice to the respondents in advance of the hearing of the appeal." 8That passage was quoted, with apparent approval, in Milillo v Konnecke [2009] NSWCA 109; 2 ASTLR 235, at [110] by Ipp JA, Macfarlan JA and Sackville AJA agreeing. The Court accepted the principles set out above with respect to the costs of a number of successful defendants between whom there were no conflicts of interest: at [109]-[113]. 9There will be cases in which, absent advance notice, the respondents may be taken to appreciate that separate representation will not necessarily give rise to separate costs orders in the event of success. However, a plaintiff or appellant will no doubt be in a stronger position in resisting separate orders if advance notice is given. 10The appellant's summary of argument, dated 23 August 2012 (and thus prepared within four weeks of the judgment in the Common Law Division) stated that if the application were refused, any order for costs should "be limited to one set of costs only for the First to Sixth Respondents, inclusive, as they are in the same interest as each other in the application and, if leave is granted, on the appeal": paragraph 40. Although the respondents submitted that that submission did not seek to "limit the representation of the respondents" the objection is without substance and appears to be based on a misreading of the rule. (The rule requires notice of objection to more than one set of costs, not notice of objection to separate representation.) 11The sixth respondent submitted that such notice was too early and should have been given when the respondents' submissions were filed and served. That submission was misconceived. 12The first four respondents objected that a similar point had not been raised before the trial judge. That might have been a relevant submission had the appellant sought to vary the costs order made by the trial judge, but she did not. 13The first four respondents were vigorous in their opposition. In addition to the technical point already noted, they submitted that the respondents' interests were "clearly" at odds and it was "clear" that their interests "in the application were not identical": paragraph 9. These statements were tendentious: no facts or reasons were proffered in support. As the presiding judge noted at the outset of the respondents' submissions, the Court was surprised to see both counsel in court and indicated that there should be no duplication: Tcpt, pp 16-17. Counsel then foreshadowed that they proposed merely to adopt the submissions of the other active respondent, which was what they did, without addition: Tcpt, 6/12/12, p 22(40). 14The Court would not wish to discourage avoidance of duplication. If the respondents had extended the hearing by duplicating submissions, despite success, they would have been vulnerable to an order that they pay some part of the appellant's costs. The second order sought by the appellant, namely that it be ordered to pay only one set of costs, should be made. 15The third order sought requested express disallowance of the first four and sixth respondents' costs of preparing written submissions which were not relied on. As the order was not opposed by the first four respondents or the sixth respondent, it should be made. 16The appellant, in the event of success in her application to vary order 4, sought the costs of the application. She had made the application in a timely fashion in her original summary of argument, although without supporting argument, and, in light of the course adopted at the hearing, it would have been appropriate to make such an order in any event. The first four respondents opposed the variation. Although the sixth respondent purported neither to consent to nor oppose the motion, it filed submissions which disputed the propositions upon which the appellant relied. It further submitted that if the orders were made, the appellant should pay the sixth respondent's costs of opposing them. That submission should not be accepted. Nor should it escape liability for costs by taking an ambivalent stance. 17The appellant having sought the orders in her original submissions, the need for the present motion was not due to any omission on the appellant's part. The motion was unsuccessfully opposed. She should have her costs of the motion. 18The Court makes the following orders: (1) Vary order 4 made on 18 March 2013 so that it reads: Appellant to pay one set of costs to the first four and sixth respondents in respect of the application for leave to appeal and the appeal. (2) Costs payable pursuant to order (1) above to the first four and sixth respondents shall not include the cost of the undated document entitled "First to Fourth and Sixth Respondents' Response to Applicant's Supplementary Submissions" which were not relied upon at the hearing. (3) Order the first four and sixth respondents to pay the appellant's costs of this motion.

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