Levi v Swaab (No 2) [2020] NSWSC 1733

Supreme Court New South Wales

Medium Neutral Citation: Levi v Swaab (No 2) [2020] NSWSC 1733 Hearing dates: 3 December 2020 Date of orders: 3 December 2020 Decision date: 03 December 2020 Jurisdiction: Equity Before: Parker J Decision: See [14] Catchwords: COSTS – party/party – general rule that costs follow the event – proceedings discontinued or dismissed –order in favour of the plaintiff conditional on payment of defendant's costs – failed to satisfy condition Category: Costs Parties: Joel Levi by his tutor Collin Levi (First Plaintiff) Sam Levi by his tutor Collin Levi (Second Plaintiff) Judith Swaab (First Defendant) Bronwyn Joy Pott (Second Defendant Representation: Solicitor advocate: B Balasubramanian (Plaintiffs)

Counsel: S Chapple (Defendants)

Solicitors: Marsdens (Plaintiffs) Keypoint Law (Defendants) File Number(s): 2019/67199 Publication restriction: Nil

Judgment – EX TEMPORE Revised from transcript; issued 7 December 2020 1. In these proceedings Mr Collin Levi, to whom I will refer as "the plaintiff", made an application as tutor for his grandsons for preliminary discovery in aid of potential claims against the estate of their other grandfather, Mr Frederick Swaab. On 2 September 2019 the application was dismissed by the Registrar. The plaintiff then applied to review the Registrar's decision, and that application came before me in August 2020. 2. On 12 August I announced my decision on the application and adjourned the proceedings to 18 August, for the purpose, as I then expected, of making final orders. I delivered oral judgments on both 12 and 18 August, which together were published as Levi v Swaab [2020] NSWSC 1119. 3. I concluded on 12 August that the application for preliminary discovery should succeed. This was not as a result of any error in the decision by the Registrar. It was simply because, on the material presented to me I thought, looking at the matter de novo, that the plaintiff had made out a case for preliminary discovery. 4. As I described it later, the plaintiff only succeeded by the skin of his teeth. I thought that the application was not a strong one. But rather than shut the plaintiff out completely I thought the appropriate course was to allow the application, on terms designed to protect the executors of the estate from prejudice. 5. I therefore decided that I would make an order in the plaintiff's favour on two conditions. The first was that the plaintiff should pay a sum of money to the executors on account of the costs order made against him in the proceedings, including the costs order already made by the Registrar, which I considered should not be disturbed. The second condition was that the plaintiff should provide security for the costs of providing the preliminary discovery itself. I announced these conclusions at the end of my judgment on 12 August. 6. When the matter returned before me on 18 August there was a debate about the extent of the costs order I should make. In the end, for reasons I gave, I thought the appropriate course would be to leave the order made by the Registrar, which covered the costs up to 2 September 2019, to stand, but to make no order for the costs of the proceedings after that date. 7. I did not however make an order on that occasion. Counsel for the plaintiffs was concerned about whether his client would be willing, or perhaps able, to pay the costs and thought that there might be some issue about contempt. Counsel asked me to fix the amount to be paid on account of costs but adjourn the proceedings to give the plaintiff time to decide whether he could, or would, pay. I would then make final orders after he had done so. Accordingly, I made an order that the plaintiffs pay the sum of $18,500 on account of costs "to be ordered in these proceedings" and adjourned the further hearing of the proceedings to a date in October. 8. The proceedings have since been adjourned to today at the plaintiff's request. I made costs orders against the plaintiff for the costs thrown away as a result of the further time which he required to consider his position. 9. When the matter came before me today I was advised by the solicitor for the plaintiff, Mr Balasubramanian, that the plaintiff had not paid the amount specified in my order on 18 August. He seeks no further time, and apparently does not propose to make the payment or to pursue the application for preliminary discovery. 10. Mr Balasubramanian accepts that in those circumstances the appropriate course is to dismiss the application for review of the Registrar's decision. Mr Balasubramanian submitted, however, that the costs order which I foreshadowed on 18 August should stand, and thus that I should make no further order for costs beyond that made by the Registrar on 2 September 2019 and the costs orders made with respect to the hearings which post-dated August. 11. For the executors, Mr Chapple submitted that the proceedings have failed and the plaintiffs should be ordered to pay the remaining costs of those proceedings. 12. In my view, Mr Chapple's submission is to be preferred. The basic rule is that the costs of the proceedings should follow the event. Although the plaintiff obtained (as I have pointed out, by the skin of his teeth) a decision from the Court that it was prepared to make an order for preliminary discovery, he has not ultimately taken that decision up. The order was also always conditional on the payment of a significant sum in costs. 13. It is clear that one of two things must have happened. Either the plaintiff has decided, on reflection, that the likelihood of ultimate success from pursuing the preliminary discovery order is insufficient to warrant the payment of $18,500 as the price of obtaining the order. Alternatively, the plaintiff simply lacks the means to make the payment. In either case, the outcome is the same. The plaintiff has failed to displace the orders made by the Registrar and has failed in the proceedings. 14. The orders of the Court are: 1. The plaintiffs' notice of motion filed 23 December 2019 be dismissed. 2. The plaintiffs pay the defendants' costs of that motion.