Blashki v Utara [2003] NSWSC 1111

New South Wales Supreme Court

CITATION : Blashki v Utara [2003] NSWSC 1111 HEARING DATE(S) : 25 March 2003 JUDGMENT DATE : 28 November 2003 JURISDICTION: Equity JUDGMENT OF : Hamilton J DECISION : Order that the defendant pay the plaintiff's costs of the proceedings.

CATCHWORDS : PROCEDURE [553] - Costs - General rule - Costs follow the event - Costs of whole action - Generally - Plaintiff generally successful - Defendant wins on some issues - Issues intertwined. Blashki v Utara [2002] NSWSC 1201 CASES CITED : Blashki v Utara [2003] NSWSC 210 Waters v P C Henderson (Australia) Pty Ltd NSWCA 6 July 1994 unreported PARTIES : Phillip Sydney Blashki (P) Ida Bagus Utara (D) FILE NUMBER(S) : SC 4686/99 COUNSEL : S J Burchett (P) G A Sirtes (D) SOLICITORS : Andrews (P) Burn & Company (D)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

FRIDAY, 28 NOVEMBER 2003

4686/99 PHILLIP SYDNEY BLASHKI v IDA BAGUS UTARA JUDGMENT 1 HIS HONOUR: Application is made on behalf of the defendant for a special order for costs consequent on judgments of mine in these proceedings: see Blashki v Utara [2002] NSWSC 1201 ("my judgment") and Blashki v Utara [2003] NSWSC 210 ("my judgment"). The application was argued on 25 March 2003 and judgment reserved but on the basis that further written submissions would be received. It is only in the last few days that I have been informed that there are to be no further written submissions. 2 The plaintiff contends that the event of the proceedings was in his favour and that the costs should follow the event. The defendant contends that this is one of the cases in which what is undoubtedly the general rule should be departed from. The defendant submits that the basis on which the plaintiff won (namely, that the transaction between the parties was one of loan) was raised by the plaintiff only by an amendment sought late in the proceedings; previously to that the plaintiff contended that the relevant property was held on trust and specifically denied that there was a transaction of loan. The exception under which he seeks to establish his entitlement to a special costs order is that this was a case in which there were multiple and discrete issues and that he had succeeded on a number of those issues. This submission fell into two parts. The first was that within the principal issue as to entitlement to a share in the property there were a number of sub issues and on several of those he was successful. The second was that there was a separate claim made on a guarantee and on that the plaintiff failed entirely. 3 The principles relating to special orders for costs in cases where there are multiple issues were adumbrated in the Court of Appeal in Waters v P C Henderson (Australia) Pty Ltd NSWCA 6 July 1994 unreported. In that case Mahoney JA said: "Second, I think there is good sense in not interfering with costs orders because quite often - and the present case is an illustration of this - the difficulty that arises in the making of the costs order lies in the application of settled principles to the facts of a particular case. It is difficult to assign particular amounts of costs to particular issues and it is difficult to decide, in retrospect, how much time was occupied upon one issue or the other and who was the successful party in relation to each of them. These are matters which a judge who has dealt with the matter may determine by his impression of the case as it was before him; an appeal court is in a more difficult situation in deciding such matters. …… In the notes to the Rules, Pt52.11.2, the following appears: 'Where the proceedings involve multiple issues the application of the rule that costs follow the event may involve hardship where a party succeeds on some issues and yet fails on others. Particularly is this so where, for example, a defendant succeeds on issues that occupied the bulk of the time taken by the proceedings. Nevertheless unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed.'