Campbell v Willian & Anor [2023] NSWSC 579

Supreme Court New South Wales

Medium Neutral Citation: Campbell v Willian & Anor [2023] NSWSC 579 Hearing dates: 4 May 2023 Date of orders: 1 June 2023 Decision date: 01 June 2023 Jurisdiction: Equity Before: Hallen J Decision: The Court: (1) Orders that the Applicant's notice of motion filed on 14 February 2023 be dismissed. (2) Orders that the Defendants pay the Applicant's costs of filing and serving the notice of motion, the costs of preparing and serving the affidavit of 26 February 2023, the costs of the appearance, by counsel at the directions hearing on 6 March 2023 and the costs of the consideration of the correspondence sent between 6 March 2023 and 5 April 2023. (3) Makes no other order as to the Applicant's costs, to the intent that he is to bear his own costs of the notice of motion. (4) Makes no order as to the Defendants' costs of the notice of motion, to the intent that they are to bear their own costs thereof. Catchwords: COSTS – Costs order sought in interlocutory proceedings - Notice of motion filed by non-party to set aside subpoena – No dispute that the Defendants, who had issued and served the subpoena, would pay the reasonable expense incurred in complying with the subpoena – Before notice of motion determined by, and after discussion at a directions hearing with, the Court, the scope of documents to be produced identified in the subpoena reduced – Therefore unnecessary to determine notice of motion to set aside subpoena – No evidence of any attempt, by either party, thereafter, to resolve costs of notice of motion despite encouragement from the Court that they do so considering s 60 of the Civil Procedure Act 2005 (NSW), with the result that more substantial costs, including costs of additional evidence and having a contested hearing, incurred – Exercise of Court's discretion - Only partial costs order made in favour of the Applicant – Otherwise no order as to costs Legislation Cited: Civil Procedure Act 2005 (NSW) Service and Execution of Process Act 1992 (Cth) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Ajkay v Hickey & Co Pty Limited [2011] NSWSC 822 Ashwood v Ashwood [2023] NSWSC 208 Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194 Boscaini Investments Pty Ltd v Corporation of the City of Kensington and Norwood (1999) SASC 327 Chapman v Luminis Pty Ltd [2003] FCAFC 162 Edwards Madigan Torzillo Briggs Pty Ltd v Stack [2003] NSWCA 302 Fire Containment Pty Ltd v Robins (No 2) [2011] NSWSC 547 Hall v Donlon [2011] NSWSC 1088 Howards Storage World Pty Ltd v Haviv Holdings Pty Ltd (2010) 182 FCR 84 Kyriacou v Raphis Securities Pty Ltd (No 2) [2022] NSWSC 339 Leichhardt Municipal Council v Green [2004] NSWCA 341 M-H Engineering Solutions Pty Ltd t/as LMF Earthmoving v Michael John Rolfe & Ors [2023] NSWSC 398 Ohn v Walton (1995) 36 NSWLR 77 One.Tel Ltd v Deputy Commissioner of Taxation (2000) 101 FCR 548 Re the Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 Red Bull Australia Pty Ltd v Michael Peter Stacey and Christian Walter Graebner [2011] NSWSC 1350 Sharpe v Dyson & Anor [2022] EWHC 2462 Sydney City Council v Geftlick [2006] NSWCA 280 Category: Costs Parties: Neil Patrick Campbell (Applicant) Debbie Willian (First Respondent) Warrick Willian (Second Respondent) Representation: Counsel: J Cook (Applicant) S Chapple (Respondents)