Patterson v Cohen [2005] NSWSC 740

New South Wales Supreme Court

CITATION : Patterson v Cohen [2005] NSWSC 740

HEARING DATE(S) : 15 July 2005

JUDGMENT DATE : 22 July 2005

JURISDICTION : Equity

JUDGMENT OF : Hamilton J

DECISION : Application to set aside costs order refused.

CATCHWORDS : PROCEDURE [483] - Judgments and orders - Varying and setting aside - General rules - Party precluded from conducting case by surprise - Utility of setting aside order - Whether different order would be made.

Ritchie's Supreme Court Procedure [40.9.1] LEGISLATION CITED : Supreme Court Rules 1970 Part 7 r 1(3), Part 40 r 1 & r 9(1), Part 56

D'Orte Ekenaike v Victoria Legal Aid (2005) 79 ALJR 755 CASES CITED : Patterson v Cohen [2005] NSWSC 635

Darcy Reginald Francis Patterson t/as H M Symonds & Britten (P) Yehuda Leon Cohen (D1) PARTIES : Sir Moses Montefiore Jewish Home (D2) Minter Ellison Lawyers (D3)

FILE NUMBER(S) : SC 2656/05

T J Hancock (P) COUNSEL : M K Rollinson (D1) G Lucarelli (D2 & 3)

H M Symonds & Britten (P) SOLICITORS : Carters Solicitors (D1) Minter Ellison (D2 & 3)

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

FRIDAY, 22 JULY 2005

2656/05 DARCY REGINALD FRANCIS PATTERSON t/as H M SYMONDS & BRITTEN v YEHUDA LEON COHEN & ORS JUDGMENT 1 HIS HONOUR: In this matter I delivered my substantive judgment and also dealt with the question of costs on 30 June 2005: Patterson v Cohen [2005] NSWSC 635 ("my judgment"). The orders that I made for costs included an order that the second and third defendants pay the plaintiff's costs of the proceedings up to and including 29 April 2005, the proceedings having commenced on 28 April 2005. The reasons for my making that order are set out in my judgment at [25] and [26] as follows: "25 Miss Walker, solicitor, who has appeared before me for the second and third defendants, has valiantly endeavoured to deflect any order for costs. However, the evidence shows that the plaintiff had conversations with Miss Sheena Leibowitz of Minter Ellison before the proceedings were commenced and in those conversations Miss Leibowitz made it plain that the second and third defendants regarded themselves as at liberty to act in defiance of the plaintiff's alleged right, which has now been vindicated, and that the money would only be paid into Court 'if you get an injunction'.