Aljaro Pty Ltd v Weidmann [2001] NSWSC 370

New South Wales Supreme Court

CITATION : Aljaro Pty Ltd v Weidmann [2001] NSWSC 370 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 3162/99 HEARING DATE(S) : 1 May 2001 JUDGMENT DATE : 1 May 2001

PARTIES : Aljaro Pty Limited (P) Ronda Beatrice Weidmann (D) JUDGMENT OF : Hamilton J

COUNSEL : J A Waters (P) P Hallen SC (D) SOLICITORS : C A Keay & Co (P) Bolster & Co (D) CATCHWORDS : PROCEDURE [573] - Costs - Departing from the general rule - Powers of the Court - Proceedings generally adversary in nature - Trustee's primary case denial of trust - Confusion caused by actions of creator of trust. CASES CITED : Aljaro Pty Ltd v Weidmann [2001] NSWSC 206 Oshlack v Richmond River Council (1998) 193 ALR 72 DECISION : No order as to plaintiff's costs.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

TUESDAY, 1 MAY 2001

3162/99 ALJARO PTY LIMITED v RONDA BEATRICE WEIDMANN

JUDGMENT 1 HIS HONOUR: There has been argument before me this morning concerning the appropriate order for costs in these proceedings. The question is not an easy one and the situation as to costs is considerably more complicated and confused than is usual. The unusual circumstances of the case are addressed at some length in my substantive judgment in the proceedings: Aljaro Pty Ltd v Weidmann [2001] NSWSC 206 ("my judgment"). 2 Mr Hallen, of Senior Counsel for the defendant, has taken the Court "back to first principles" in quoting a passage from the judgment of McHugh J in Oshlack v Richmond River Council (1998) 193 ALR 72 at 97: "[67] The expression the 'usual order as to costs' embodies the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour. The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party. If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation. [68] As a matter of policy, one beneficial by-product of this compensatory purpose may well be to instil in a party contemplating commencing, or defending, litigation a sober realisation of the potential financial expense involved. …"