Old v Miniter (No 2) [2020] NSWDC 519

District Court New South Wales

Medium Neutral Citation: Old v Miniter (No 2) [2020] NSWDC 519 Hearing dates: 4 September 2020 Date of orders: 4 September 2020 Decision date: 04 September 2020 Jurisdiction: Civil Before: Judge Levy SC Decision: 1. The plaintiff is to pay the defendant's costs of the proceedings on the ordinary basis, but such costs liability should be limited to costs properly incurred by the defendant up until 30 September 2019 and not thereafter; 2. The defendant is to pay his own costs incurred in defending the proceedings after 30 September 2019; 3. The plaintiff is to pay his own costs of the proceedings; 4. For the guidance of any Costs Assessor appointed to assess liability for disputed costs, the parties should not be held responsible for any costs incurred by their legal representatives resulting from the incorrect formulation and preparation of the issues for trial by reason of a belated appreciation of the fact that the Civil Liability Act 2005 (NSW), particularly s 5O of that Act, had no application to these proceedings. Catchwords: COSTS – consideration of appropriate order for the costs of the proceedings where both parties failed to comply with Judicial Registrar's order to pursue alternative dispute resolution on or before 30 September 2019, in circumstances where the hearing was fixed to commence on 28 October 2019, and where neither party brought such non-compliance to the attention of the Court for remedial orders to be made Legislation Cited: Civil Liability Act 2005 (NSW), s 5O Civil Procedure Act 2005 (NSW), s 56, s 58, s 98, s 99 Uniform Civil Procedure Rules 2005, r 20.26, r 42.1 Cases Cited: Calderbank v Calderbank [1975] 3 All ER 33 Gray v Richards (No 2) [2014] HCA 37 House v The King (1936) 55 CLR 499; [1936] HCA 40 Messiter v Hutchinson (1987) 10 NSWLR 525 Northern Territory v Sangare [2019] HCA 25 Old v Miniter [2020] NSWDC 401 Oshlack v Richmond River Council (1998) HCA 11 193 CLR 72 Category: Costs Parties: Brian Old (Plaintiff) Associate Professor Miniter (Defendant) Representation: Counsel: Mr L Abboud (Solicitor for the plaintiff) Mr M Hutchings (Defendant)