Abson by his tutor NSW Trustee and Guardian v Johnston (No 2) [2024] NSWSC 1148

Supreme Court New South Wales

Medium Neutral Citation: Abson by his tutor NSW Trustee and Guardian v Johnston (No 2) [2024] NSWSC 1148 Hearing dates: On the papers Date of orders: 27 September 2024 Decision date: 27 September 2024 Jurisdiction: Common Law Before: Davies J Decision: (1) I revoke order 3 made 13 June 2024 which ordered the first defendant to pay the plaintiff's costs thrown away by reason of the amendment to his Defence. (2) I make a gross sum costs order against both defendants in the sum of $16,000. Catchwords: COSTS – party/party – gross sums costs order – where proceedings settled – where plaintiff obtained orders it sought - whether an order for costs should be made – where plaintiff would have succeeded at hearing – where defendant unreasonably rejected Calderbank offers – whether defendants' conduct of proceedings unreasonable - doubtful capacity of defendant to pay costs – where plaintiff sought gross sum lower than their actual costs – gross sum costs order made Legislation Cited: Guardianship Act 1987 (NSW) NSW Trustee and Guardian Act 2009 (NSW) s 71; Sch 1, cl 5 Protected Estates Act 1983 (NSW) (repealed) Uniform Civil Procedure Rules 2005 (NSW) rr 10.14, 10.15 Cases Cited: Bobb v Wombat Securities Pty Ltd & Ors (No 2) [2013] NSWSC 863 Calderbank v Calderbank [1973] 3 WLR 586; 3 All ER 333 Edwards Madigan Torzillo Briggs Pty Ltd v Gloria Stack & Ors [2003] NSWCA 302 Furnish & Finish Pty Ltd v Holland [2020] NSWSC 1593 Hamod v State of New South Wales [2011] NSWCA 375 Hamod v New South Wales (No 13) [2009] NSWSC 756 Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 One Tel Ltd v Commissioner of Taxation (2000) 101 FCR 548; [2000] FCA 270 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45 Qasim v Bird & Ors [2022] NSWSC 418 Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin (1997) 186 CLR 622 Young v Hones (No. 3) [2014] NSWSC 499 Zepinic v Chateau Constructions (Aust) Ltd (No. 2) [2014] NSWCA 99 Texts Cited: Nil Category: Costs Parties: Matthew Abson by his tutor NSW Trustee and Guardian (Plaintiff) Mathew Johnston (First Defendant) Corey Johnston (Second Defendant) Representation: Counsel: On the papers