New South Wales Supreme Court CITATION : Grynberg v Muller; Estate Late M Bilfeld [2002] NSWSC 414 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 119213/94 HEARING DATE(S) : 7 May 2002 JUDGMENT DATE : 7 May 2002 Robert Benjamin Grynberg & John Landerer (Ps) PARTIES : Stephen Muller (D1) Moriah War Memorial College Association (D2) JUDGMENT OF : Hamilton J Dr C J Birch SC (Ps) COUNSEL : J E Armfield (D1) M A Friedgut, Solicitor (D2) Milne Berry & Berger (Ps) SOLICITORS : Patterson Houen & Commins (D1) Freehills (D2) CATCHWORDS : PROCEDURE [573] - Costs - Departing from the general rule - Powers of court - Relevant principle - Success of different parties on distinct claims. CASES CITED : Grynberg v Muller; Estate Late M Bilfeld [2002] NSWSC 350 DECISION : First defendant to pay second defendant's costs of first defendant's costs application. Plaintiffs to have 60 per cent of their costs of their applications for costs out of the estate. IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST HAMILTON J TUESDAY, 7 MAY 2002 119213/94 ROBERT BENJAMIN GRYNBERG & ANOR v STEPHEN MULLER & ANOR ESTATE OF THE LATE MALKE BILFELD JUDGMENT - ON COSTS APPLICATION (see p 4 of transcript) 1 HIS HONOUR: One matter that remains outstanding for decision in this case is the question of the costs of the motions brought on behalf of the first defendant and the second plaintiff respectively to set aside the orders as to costs made by Hodgson CJ in Eq (as his Honour then was) on 9 November 1998 in respect of what I have called the first aspect of the case. 2 Mr Armfield, of counsel for the first defendant, whose only motion was for the setting aside of those orders and the making of a different costs order in respect of the first aspect of the case, very properly takes the attitude that there is very little he can say against the proposition that, having lost the motion, his client must pay the second defendant's costs of that motion and that is the order I intend to make in respect of his client. I should add that the concession was made and the costs will be ordered on the basis that what is referred to is the costs occasioned by the first defendant's motion and none other. 3 Dr Birch, of Senior Counsel for the plaintiffs, contends that this prayer was but one aspect of the motion brought by his clients. Although a motion was probably not necessary in this regard, his motion also contained prayers for the orders in relation to the costs of the second aspect of the proceedings. Therefore, the whole of the proceedings before me in relation to costs and determined by my judgment in that regard (see Grynberg v Muller; Estate Late M Bilfeld [2002] NSWSC 350) were proceedings upon that motion. On the basis that all the proceedings leading to that judgment were, so far as the plaintiffs are concerned, incurred on the motion, the orders as to costs I make on the motion will encompass all of the plaintiffs' costs of those days of argument and preparation therefor, including the drawing of written submissions. 4 Dr Birch has argued that, as his clients were successful in obtaining the orders they sought in respect of the second aspect of the case, they should be regarded as the successful party on the whole motion and should, therefore, have the whole of their costs of the argument. I do not think that that is correct. Whilst there may be mechanical difficulties in sorting out the various portions of the argument in relation to each of the two aspects of it, in reality the two arguments were separate, in the sense that there was virtually no overlap of either evidence or legal argument relating to the two separate aspects. Furthermore, it does not seem to me, bearing in mind that there are three parties to the proceedings, to be a just result that Mr Armfield's clients are left to bear their costs of the same application as Dr Birch's client brought and participated in, in relation to the costs of the first aspect, while Dr Birch's clients have theirs paid. Dr Birch urges me, if I will not give the plaintiffs all their costs, to make an order for part of their costs, reflecting the second defendant's entitlement to have some of the costs of the motion. 5 Mr Friedgut, the solicitor for the second defendant, presses on me that I ought make an order that would leave it to a costs assessor to sort out the proportions of the case attributable to each of the two aspects. Whilst I think Mr Friedgut is correct conceptually, that this is not a difficult process, I cannot agree with the submission, so far as he makes it, that it would be a simple matter, and I do not think it an easy or cheap one. I think it would involve quite undue time and expense. In my view, substantial justice will be done if I, with the matter quite fresh in my mind, make an estimate as to the time respectively taken by each of the aspects of the plaintiffs' application and make an order accordingly. In my view, bearing in mind that I have already ordered the first defendant to pay the second defendant's costs so far as they were occasioned by the application brought by him, about 20 percent of the costs as between the plaintiffs and the second defendant arose from evidence, argument and the supporting documents in respect of the first aspect of the case. If I double that, to allow for the fact that Dr Birch's clients should both bear their own costs of that portion of the case and pay the second defendant's costs of it, the appropriate order is, in my view, that Dr Birch's clients should have 60 percent of their costs of the motion. In my view the appropriate way in which they should have their costs is the same way in which I have decided that they should have their costs generally of the second aspect of the proceedings, namely, by virtue of an order that they have their costs out of the estate. I propose to order that in respect of the plaintiffs' notice of motion dated 17 August 2001, the plaintiffs are to have 60 percent of their costs of that motion out of the estate. It is to be understood, when I refer to the costs of the motion, that they are to encompass all the argument that took place upon the costs of both the first aspect and the second aspect of the proceedings. (Further discussion ensued; see pages 4 to 7 of the transcript.) 6 A further small aspect of the matter has been debated before me, that is, what order, if any, ought to be made in respect of the costs of the motion brought by Professor Popovtzer that he should have an order in his favour for costs of the proceedings, if the plaintiffs' application for costs were refused on the basis that the plaintiffs had not incurred any liability for costs, so that they were not entitled to any indemnity in respect thereof. That motion fell to ground and became otiose when I determined that the plaintiffs were in fact entitled to their costs. The second defendant contended that Professor Popovtzer should pay the second defendant's costs of this motion. The alternative version put forward is that I should make no order relating to these costs. That would mean that Professor Popovtzer was not entitled to recover his costs of the motion, but that the second defendant could recover any additional costs incurred by it by reason of this failed motion under the general order in its favour for costs out of the estate on an indemnity basis. 7 In all the circumstances of the case, I think the second course is preferable. Two of the reasons I take into account in coming to that conclusion are that the second defendant itself occasioned Professor Popovtzer's motion during the course of the argument by its unsuccessful contention that the plaintiffs were not entitled to costs by reason of the indemnity principle. The other is that the costs of this motion were negligible, taking a quite inconsiderable amount of time in relation to the quite large costs incurred over the costs issue. For those reasons I propose to make no order as to costs in respect of Professor Popovtzer's dismissed motion. 8 I make orders in accordance with the short minutes initialled by me and placed with the papers. 9 Applications re interim payments are stood over to 12 June 2002 at 9.30 am before me. Dr Birch, will you make sure that if you make an application, you will let Mr Friedgut know well in time. There is no need for the first defendant to attend further. 10 Mr Friedgut, I should wish you to communicate to the interim administrator that I should wish him to be represented on the next occasion and I should wish to have his view by affidavit or orally as to the application and I should also like to know his intentions as to administration of the estate. I want to know his attitude and what amount of cash will be available for distribution. ********** Last Modified: 09/06/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.