The Entrance Plaza Pty Ltd v Davids

Consideration

The Entrance Plaza Pty Ltd insisted on an oral hearing in this Court. Its written submissions in chief were concise. In this Court, it accepted that a submission which suggested that the judge "had decided the question of costs prior to hearing the party's submissions" based on a comment he had made late on 18 May, after delivering judgment, fell outside the draft notice of appeal and would require an amendment. In any event, the primary judge went on to hear submissions from both parties on the following day.
The Entrance Plaza maintained that the decision was clearly wrong. It referred to the general rule that costs followed the event, and complained that the primary judge "did not identify and find that there were 'special circumstances" as to why he should depart from the general rule that costs follow the event". But that is precisely what the primary judge did in his reasons, although his Honour did not in terms use the words "special" or "exceptions".
The Entrance Plaza also filed written submissions, purportedly in reply. Those submissions amount, in substance, to a new presentation of its case.
Nowhere in the written submissions in chief or in reply is there an attempt to grapple with the gravamen of the reasons of the primary judge, which were that the plaintiff, who must be taken to have been found to have been injured in the shopping centre, and whose income was from a carer's pension, was unable to pay any appreciable amount of costs, save from the judgment she had obtained in her favour from the other defendant. The absence of means of the plaintiff was consistent with what the court had been told by Ms Davids' counsel. It was also consistent with the application made by counsel then appearing for The Entrance Plaza not to rely on such rights as it had to obtain an indemnity order as to costs, which he said would amount to "an exercise in futility", but instead to seek a limited lump sum costs order. In any event, it was not suggested that there was any material error of fact by the primary judge in proceeding on that basis. So far as the materials made available to this Court disclose, and this was confirmed when the application was heard, The Entrance Plaza had not filed a cross-claim against the cleaner, against which it would have been open for the Entrance Plaza to seek an order as to costs.
Contrary to the written submissions of The Entrance Plaza, the present decision does not establish some general proposition that "To allow this costs order to stand in these circumstances is in essence an acceptance of the position that any party should be able to offer to 'walk away' from proceedings at the last minute and not run the risk of any adverse costs order". The critical facts of this case were that the plaintiff was of limited means, was in fact injured on the defendant's premises, and the defendant who failed to accept a late "walk away" offer had not cross-claimed against its contractor who was ultimately held to be liable.
Save perhaps for the foregoing, The Entrance Plaza does not suggest that there is any question of principle or public importance. The threshold question on the grant of leave is whether there is shown to be a case of clear injustice.
The evidence in this Court is that the total costs of The Entrance Plaza were $60,616.21. Rather less than that amount of costs would have been recoverable on a party-party basis had a favourable costs order been obtained; precisely how much less is not established from the evidence. It may be noted that there was no expert evidence, no affidavits, no written submissions, and the testimonial evidence of the plaintiff and her daughter, and the only witness called for The Entrance Plaza (Mr Muir, who was employed at the centre) was completed before the luncheon adjournment, and addresses were brief. It was a very short case, which would have completed in a day save for the fact that the plaintiff sought a delayed start in order to seek to reach a compromise.
The Entrance Plaza submits that if the primary judge considered that it was unreasonable for it not to have accepted Ms Davids' offer conveyed to it at 4.27pm on 17 May 2016, then even so the most the primary judge should have done was to disentitle it to its costs incurred thereafter. The evidence is that the billed costs prior to trial were some $36,000. The amount of costs recoverable on a party-party basis would be appreciably less than that. And in assessing the question of injustice, it is also appropriate to have regard to the application for a lump sum costs order in the amount of some $18,000 which its counsel made at the time.
The question of injustice also falls to be assessed in light of costs subsequently incurred. The Entrance Plaza ran the case at trial with junior counsel, but briefed senior counsel on the application for leave. If leave is granted, then there will be another day's hearing. It seems likely that costs incurred by The Entrance Plaza of a successful challenge to the failure to order costs at first instance will exceed - and perhaps considerably exceed - the recoverable costs to which it says it was entitled. That would be so even if there had been a concurrent hearing of the leave application and the appeal (which is what The Entrance Plaza had sought). There is a further question whether if such a costs order were made, it would in fact yield any recoverable costs. The materials available to this Court do not permit a view to be expressed on that question, and so it is to be put to one side for present purposes. However, it is appropriate also to have regard to the public cost of court time used, and the delay to other litigants. Those feed directly into the importance of ensuring that costs not swamp the real issues between the parties.
One final matter appears from the transcript. The Gosford sittings in May 2016 may be inferred to have been busy. The primary judge read the material supplied by the parties on the night of 17 May 2016. It is plain from the transcript that matters were being interposed throughout the following day. At the commencement of 19 May, his Honour said "Now back to Davids v The Entrance Plaza. We got to the point yesterday afternoon where I delivered a judgment on liability and then time expired and the staff needed to be given some relief." The primary judge referred repeatedly to the number of matters in the list, and was critical of The Entrance Plaza running the matter, notwithstanding Ms Davids' offer, in the hope of obtaining a favourable costs order.
In all of those circumstances, The Entrance Plaza has not established a clear case of substantial injustice. Leave should be refused. Costs should follow the event.

At a glance

Court

Decision date

Before

Source

Judgment (7 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (4)

Cited By (2)