TRIDEN PROPERTIES LTD v CAPITA FINANCIAL GROUP LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY AP, MEAGHER and CLARKE JJA 25 July 1994 [1994] NSWCA 318 Mahoney AP There is before the Court this application, a motion for the dismissal of two sets of proceedings. On 21 September 1992 an interlocutory order was made by Rogers J in these proceedings and a notice of appeal was filed against that order. The order was an interlocutory order and, accordingly, leave to appeal was necessary and no leave to appeal was obtained. That is the first set of proceedings involved. Secondly, orders were made by way of interlocutory orders by Cole J in the proceedings. The papers placed before the Court indicate that orders were made on 10 November 1992, 27 November 1992 and 4 December 1992. A summons or summonses were filed seeking leave to appeal against those orders, they are the second set of proceedings. The summons before the Court by the Capita Financial Group is a summons seeking dismissal both of the appeal and the leave to appeal proceedings. It is plain that the notice of appeal was incompetent; that is not now, I think,:'seriously contested. However that be, it is plain that for lack of leave to appeal that notice of appeal could not proceed. The summonses for leave to appeal theoretically might succeed but the parties are both agreed that time has passed them by and no useful point would be served by proceeding with those summonses. The reason for that is or includes that in September 1993 Cole J made orders by way of final determination of the proceedings in respect of liability; in May 1994 he made orders in respect of damages; and on 8 June 1994 he made orders as to costs. Those sets of orders apparently disposed of the proceedings at trial level. There has, as I infer, been an appeal lodged in respect of the final orders or judgments of Cole J. But however that be the Court is not concerned with such orders, it is concerned with the two sets of proceedings to which I have referred. It is now agreed that the notice of appeal and the summons or summonses for leave to appeal should be dismissed for the reasons to which I have referred. The argument, which has occupied the Court for some hour or more, has been concerned with the costs of those proceedings. No doubt it is appropriate that there be some argument about those costs; having regard to the quantum of the material in this part of the proceedings alone, the costs must have been considerable. The costs in this regard may for present purposes effectively be divided into two: the first group of costs would be the costs ordinarily incident to the lodgement of the appeal and the summonses for leave to appeal and the dismissal of them; the second group would be the costs of the notice of motion filed on 7 July 1994 to dispose of that notice of appeal and the summonses for leave to appeal. 2 UNREPORTED JUDGMENTS In relation to the first group of costs, that is the costs ordinarily incident to the appeal and the leave applications, the central fact is that those proceedings have failed. The appeal was, as I have said, incompetent; and in the event, whatever be the reasonableness of filing the summonses originally, they have now proved pointless and it is accepted that they must be dismissed. In my opinion, in all the circumstances of the case - and the Court has listened with patience to what has been said by each counsel at length - I am of the opinion that Triden, the party which filed the proceedings and has accepted that they should be dismissed, should bear these costs of those proceedings. I emphasise again these are the costs ordinarily incident to the notice of appeal, the summons for leave to appeal and the dismissal of them. The second set of costs relates, as I have said, to the notice of motion filed 7 July 1994. This is a motion which in its terms seeks that the notice of appeal be struck out as incompetent and that the summonses for leave to appeal be dismissed upon the ground - although there is another ground added - that there is no utility in pursuing them. The first factor to be taken into account in relation to that notice of motion is that it was filed without what I may call, somewhat inaccurately, a preliminary letter of demand. There was no pressing reason why the outstanding appeal and summonses for leave to appeal had to be dealt with at that stage. They might have been left to be dealt with subsequently or might well have been dealt with by discussion between the parties. However that be, without a preliminary letter in relation to the matter a summons was filed on 7 July 1994 for the dismissal of them. In my opinion that motion having been filed without a preliminary request, the Court would look very carefully at any order in respect of the costs of it. As I have indicated on previous occasions, before proceedings are initiated, whether interlocutory or otherwise, it is ordinarily to be expected that the solicitors for the parties will seek convenient and inexpensive methods of dealing with the matter in issue. It is normally to be expected that a request will be made to the other side for the relief which is sought by the proceedings before the costs are incurred, the additional costs of the proceedings. That was not done in the present case. That is a factor which properly is to be taken into account, of course with other factors, in determining costs. As counsel has indicated, the matter has been before the Court, on previous occasions. On 20 July 1994 the solicitors for Triden wrote a letter to the solicitors for the Capita Group indicating the position adopted by their client and saying: "The motions were launched without the courtesy of a letter foreshadowing your actions or seeking our client's agreement upon an expeditious and cheap modus operandi to resolve the outstanding summonses for leave to appeal and the further issues raised." The letter in question concluded: "The purpose of this letter is to give your client an opportunity of reconsidering these motions and withdrawing them, in which event our client will be content to ask for no order for costs. If your client persists in these motions, our client will move for indemnity costs and this is to advise you of this fact. Had you timeously foreshadowed your intentions giving our client an opportunity to consider its position, you would have been informed that our client concedes that there is no longer any utility in litigating the issues raised by the summonses for leave to appeal as the events have overtaken them and, in any event, in the context of the forthcoming appeal questions relevant to those URJ TRIDEN PROPERTIES LTD v CAPITA FINANCIAL GROUP LTD (Mahoney AP) — 3 summonses will be litigated. The only questions outstanding in relation to the summonses relate to costs, the determination of which, in our view, should properly abide the outcome of the appeal." There was an immediate reply by the solicitors for Triden in which, having set forth a number of matters, those solicitors said: "As your client concedes that there is no utility in proceeding with the remaining matters in proceedings 40585 of 1992 there is no need for our notice of motion in respect of those proceedings to be argued before the Court of Appeal next Monday, provided that your client consents to the proceedings being dismissed with an order that the appellant pays the respondent's costs of the appeals and Capita's notice of motion. Please advise us as a matter of urgency whether your client will consent to orders dismissing the pending appeals in proceedings Number 40585 of 1992 with an order of costs in our client's favour. If your client will not consent to such order, please confirm that it will consent to these proceedings being dismissed with the question of costs to be determined by the Court. This will at least limit the argument before the Court in respect of proceedings 40585 of 1992. In the meantime until we receive your response we must assume that our client's notice of motion will be heard by the Court of Appeal on 25 July 1994." Subsequently, as the Court is informed, the solicitors had a conversation in which the solicitors for Capita asked for consent to the proceedings being dismissed; the solicitor for Triden indicated that he had no instructions to that effect but conceded that there was no utility in the proceedings in question in the motion. That is my understanding of the conversation referred to in the affidavit of Mr Templeman of 25 July 1994. It is plain that the appeal and the summonses for leave to appeal must be dismissed. The question arises as to what order the Court should make. There are, of course, two sets of costs; the costs between the parties and the costs between the solicitors and their own client. We are dealing only with the former. In relation to the latter I shall, of course, make no binding observations. I shall say only that in the circumstances it would appear that substantial costs have been or may have been incurred in the preparation of the present proceedings. Large bundles of papers have been filed on each side on this particular aspect of the matter and the costs of preparing these may well be substantial. Whether those costs are to be billed to the clients concerned is a matter, of course, to be determined by the arrangements between the solicitors and their own clients. One can only say that in the circumstances of this case it is unfortunate that those costs were incurred. I am inclined to think that, on the one hand, had there been a preliminary letter of demand, as I have described it, the notice of motion of 7 July 1994 may well not have been filed; and on the other hand had it been formally and frankly conceded that the appeal and the summonses for leave to appeal had to go, some costs might have been saved. However, these are matters to be dealt with by the taxing officer or the proper authority if there be a dispute between the solicitors and their own clients in relation to those costs. As to the costs between the parties, I am of the opinion that each party was not completely without fault. Bearing in mind all of the things that have been said and weighing up the circumstances involved I think the proper order is each party bear its own costs of this motion. 4 UNREPORTED JUDGMENTS I therefore propose that the appeal and the summonses referred to in the notice of motion of 7 July 1994 each be dismissed and that the costs be borne by the parties in the manner to which I have referred. Meagher JA I agree. Clarke JA I agree. Mahoney AP: The orders of the Court will be as I have indicated. Appeal and summonses referred to in the notice of motion of 7 July 1994 10 dismissed and costs be borne by each party.