HILLSTON v BAR-MORDECAI [2003] NSWSC 231

New South Wales Supreme Court

CITATION : HILLSTON v BAR-MORDECAI [2003] NSWSC 231 HEARING DATE(S) : 28/03/2003 JUDGMENT DATE : 4 April 2003 JURISDICTION: EQUITY JUDGMENT OF : Bryson J at 1 DECISION : Indemnity costs in some cases see [22-24]

CATCHWORDS : COSTS - indemnity costs - ruling on claim for costs awarded to Hillston to be on indemnity basis - rulings for many Notices of Motion - indemnity costs awarded in some cases. LEGISLATION CITED : s.66G of the Conveyancing Act 1919 s.76 of the Supreme Court Act 1970 CASES CITED : Re Wilcox Ex Parte Venture Industries Pty Ltd (No.2) (1997) 72 FCR 151 Rosniak v. Government Insurance Office (1997) 41 NSWLR 608 PARTIES : Allan David James Hillston - Plaintiff in 3240/98 and Defendant in 1709/99 and 3039/02 Michael Jacob Bar-Mordecai - Defendant in 3240/98 and Plaintiff in 1709/99 and 3039/02 FILE NUMBER(S) : SC 3240/98; 1707/99 and 3039/02 COUNSEL : J. Whittle SC & B. Burke for A. Hillston M. Bar-Mordecai in person SOLICITORS : Shaw McDonald for A. Hillston M. Bar-Mordecai in person

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BRYSON J.

3240/98 - ALLAN DAVID JAMES HILLSTON V MICHAEL JACOB BAR-MORDECAI & ANOR

1707/99 - MICHAEL JACOB BAR-MORDECAI V ALLAN DAVID JAMES HILLSTON

3039/02 - MICHAEL JACOB BAR-MORDECAI V ALLAN DAVID JAMES HILLSTON

FRIDAY 4 APRIL 2003 JUDGMENT (COSTS)

1 HIS HONOUR: At para.[273] of the reasons which I published on 28 February 2003 I deferred consideration of all questions of costs until the parties had an opportunity to consider my reasons and made any application for appropriate costs orders. Legal representatives of Mr Allan Hillston obtained an appointment to argue costs for 28 March 2003, which was four weeks after publication of my reasons, and counsel presented Mr Allan Hillston's application on that day. Mr Bar-Mordecai was notified of the appointment by letter of 20 March to which he replied on 25 March, seeking an adjournment, which Mr Hillston's solicitor did not agree to. Mr Bar-Mordecai asked me to adjourn argument on costs for two months, or for six weeks so that he could prepare submissions in reply. He proceeded to explain to me what he said were some complexities of questions of costs, but referred rather to a proposed appeal and to criticisms he would wish to make of the reasons which I published on 28 February. The effect of what he told me was that he wished to challenge many of my conclusions and to suggest that the case of Mr Allan Hillston which prevailed did so because of delinquency in the conduct of witnesses and in the way the case was presented. It was my view that, in disposing of questions of costs, I should accept and act on my own published reasons, including decisions on fact, on which I acted in making the principal orders. It was my view that a fair opportunity to prepare to argue costs had been given and I declined to adjourn the argument. 2 In each case Mr Hillston has achieved complete success and is entitled to a general order for costs. Mr Hillston's counsel asked me to depart from the usual order as to costs in several respects: (1) He asked that the general costs of the hearing of the three proceedings should be ordered to be assessed on the indemnity basis.