Leslaighter v Beck & Ors [2002] NSWSC 1017

New South Wales Supreme Court

CITATION : Leslaighter v Beck & Ors [2002] NSWSC 1017 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 12860/02 HEARING DATE(S) : 24 October 2002 JUDGMENT DATE : 24 October 2002

Mark Leslaighter (Plaintiff) PARTIES : David Beck (First Defendant, First Cross-Defendant) Bill Abraham Concretor Pty Limited (Second Defendant, Cross-Claimant) John Reeves (Second Cross-Defendant) JUDGMENT OF : Sperling J at 1

Mr D Dickinson for the Plaintiff COUNSEL : Mr R Cavanagh for the First Defendant Mr S Kettle for the Second Defendant Mr A Hewitt SC for the Second Cross-Defendant SOLICITORS : Griffiths Tierney Solicitors for the Plaintiff CATCHWORDS : Costs - no question of principle DECISION : See paragraphs 1 and 9.

- 3 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Sperling J

Thursday, 24 October 2002

12860/02 Mark Leslaighter v David Beck & Anor

Judgment 1 His Honour: On the evidence tendered there is a serious possibility, and I need make no further finding, that the plaintiff will recover a verdict in excess of $750,000. That being so, I make order 1 in the summons filed on 18 October 2002. 2 The plaintiff seeks an order that the costs of the summons should be costs in the cause. The defendants and the second cross-defendant seek orders that the plaintiff pay their respective costs of the summons. 3 The proceedings were instituted by the plaintiff in the District Court. I have already found that there is a prospect that the plaintiff might recover in excess of the effective jurisdiction of the District Court, at least in the case of one of the defendants and, accordingly, that the plaintiff had at all relevant times a proper basis upon which to move to transfer the proceedings into the Supreme Court. 4 Prior to the summons being filed, it seems tolerably clear that each of the defendants and the cross-defendant was requested by the plaintiff to agree to an extension of the jurisdiction of the District Court, and none of them did. Accordingly, the plaintiff was then in a position where steps had to be taken to secure a jurisdiction in which the problem to which I have referred would not arise. That was done by filing a summons in this Court on 18 October 2002 which was brought on for hearing at short notice today. 5 The summons, however, sought not only removal of the proceedings into this Court, but also a transfer back to the District Court. The position adopted by the defendants and the second cross-defendant in response to the summons was that they would neither consent nor oppose the transfer of the proceedings into the Supreme Court, but would oppose a transfer back to the District Court as an abuse of process. 6 On the hearing of the summons, the plaintiff's legal representatives, on consideration, did not press such a transfer back to the District Court. 7 The result is that the plaintiff has achieved, by order of this Court, what would have been achieved if the defendants and the second cross-defendant had acceded to an enlargement of the jurisdiction of the District Court, as they were requested to do before the present proceedings were instituted. 8 If transfer to this Court were all that had been sought, the plaintiff would plainly have been entitled to recover the costs of the summons in the circumstances to which I have referred. The situation is, however, complicated by the plaintiff having sought the further order for the matter to be transferred back to the District Court, which it is now conceded the Court would not have ordered. 9 The Court is informed, and I accept it without evidence because it is so obviously what one would expect, that counsel appearing on the summons would not have been briefed if all that had been sought was a transfer into the Supreme Court, without the application for the further order of transfer back to the District Court. Accordingly, in that respect, the costs incurred in briefing counsel on the summons have been unnecessarily incurred as a result of a course taken on behalf of the plaintiff. 10 Nothing I have said should be construed as a criticism of the plaintiff's legal advisers. Decisions are made conscientiously and when seen to be decisions which should not be maintained, it is proper to do what the plaintiff's legal advisers have done, and that is to refrain from pressing the point. It is an every day occurrence that things are seen differently on further consideration. Nonetheless, the matters I have mentioned are practical considerations which go to where the burden of the costs of this summons should fall. 11 Weighing up those considerations, I propose to make no order as to costs with the intent each side will bear their own costs. -oOo-