Georgeski v Owners Corporation SP49833 [2005] NSWSC 311

New South Wales Supreme Court

CITATION : Georgeski v Owners Corporation SP49833 [2005] NSWSC 311

HEARING DATE(S) : First Defendant's submissions on costs not received in chambers until 8 February 2005. Plaintiff's written submissions received 1 April 2005.

JUDGMENT DATE : 11 April 2005

JURISDICTION : Equity Division

JUDGMENT OF : Barrett J

DECISION : Plaintiff to pay first defendant's costs as agreed or assessed

CATCHWORDS : PROCEDURE - costs - where defendant files submitting appearance after claims in summons amended - whether defendant's costs before amendment should be assessed on indemnity basis

Cook v ANZ Bank (unreported, NSWSC, 16 June 1995) CASES CITED : Georgeski v Owners Corporation SP 49833 [2005] NSWSC 28 Oshlack v Richmond River Council (1998) 193 CLR 72

Annette Georgeski - Plaintiff Owners Corporation SP49833 - First Defendant PARTIES : Anne Catherine Hynd - Second Defendant Joan Mary Hutchinson - Third Defendant State of New South Wales - Fourth Defendant

FILE NUMBER(S) : SC 5018/02

Mr M.F. Holmes QC/Ms K. Richardson - Plaintiff COUNSEL : Mr D.A. Smallbone - Second and Third Defendants Mr T.H. Barrett - Fourth Defendant

Warren McKeon Dickson - Plaintiff Dobes & Andrews - First Defendant SOLICITORS : McCabe Partners - Second and Third Defendants K.V. Knight, Crown Solicitor - Fourth Defendant

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BARRETT J

MONDAY, 11 APRIL 2005

5018/02 – ANNETTE GEORGESKI v OWNERS CORPORATION SP49833 & 3 ORS JUDGMENT 1 On 4 February 2005, I delivered a judgment on costs in these proceedings: see Georgeski v Owners Corporation SP 49833 [2005] NSWSC 28. At paragraph [22] I said: "The first defendant (owners corporation) filed a submitting appearance except as to costs and took no part in the proceedings. Nor did it file submissions on costs. There will accordingly be no order as to costs of the first defendant." 2 On 8 February 2005, the solicitors for the first defendant wrote to my Associate saying that submissions on costs by the first defendant had been filed in the Registry on 6 December 2004. Upon inquiry, I found this to be so. The court file was in my chambers on 6 December 2004 so that I might have regard to its contents in relation to the then outstanding costs issues. The submissions filed in the Registry on 6 December 2004 had not been delivered to my chambers by the time I delivered judgment on 4 February 2004. I was therefore unaware of their existence. 3 Upon becoming aware of the submissions filed on 6 December 2004, I had my Associate inform the parties of my intention to re-open the costs judgment. Submissions of the plaintiff in reply to the first defendant's submissions filed on 6 December 2004 were sought and are now to hand. 4 The first defendant seeks an order that the plaintiff pay its costs of the proceedings on the indemnity basis up to the date of the filing of the submitting appearance (13 December 2002) and thereafter on the party/party basis. The plaintiff does not resist the making of a costs order against her and in favour of the first defendant but says that no part of the costs should be assessed on the indemnity basis. 5 The first defendant's claim for costs on the indemnity basis relates to the period from initiation of the proceedings to the filing of the submitting appearance prompted by amendment of the summons on 6 December 2002. As originally advanced in the summons filed on 9 October 2002, the plaintiff's claims were for declarations that "any owner, lessee or occupier of any unit situated on the Defendant's land is not entitled to use" the jetty or, except for crossing to get to the foreshore, the slipway. Although "Defendant's" was in the singular possessive, three defendants were named, being the owners corporation (first defendant) and two lot owners (the second and third defendants). Also claimed by the plaintiff was "An order restraining the Defendants [plural], their servants or agents and any owner lessee or occupier of any unit situated on the Defendant's [singular] land from [doing certain things in relation to the jetty and the slipway]." 6 The first defendant apparently took the view that relief framed in these terms would make the owner's corporation responsible for trespass by any of the lot owners. There was negotiation between the first defendant and the plaintiff which led to the claims being amended so that those I have outlined became claims against the second and third defendants only and there was added a claim for declaratory relief against the first defendant in the terms in respect of which it then filed a submitting appearance. These amendments were effected by an amended summons filed on 6 December 2002 and, as I have said, the first defendant filed its submitting appearance on 13 December 2002. 7 The first defendant's basic submission is that it acted reasonably in adopting a defensive stance while the claims were in a form which it considered too wide and inimical to its interests and in persuading the plaintiff eventually to narrow the claims against it. The award of indemnity costs in relation to matters preceding the filing of the submitting appearance is, it is said, warranted by these factors. 8 The plaintiff says that the considerations raised by the first defendant provide no justification for an order for indemnity costs. She says that the rule generally applicable where there is a submitting appearance is that stated by McLelland CJ in Eq in Cook v ANZ Bank (unreported, NSWSC, 16 June 1995): "There is no reason why, as a matter of practice, the costs of a submitting defendant payable by another party should be assessed on some special basis. Such costs would often be nominal in amount (cf the old practice of tendering two guineas perusal costs to a party to whose costs of appearing in Court objection was to be taken - see eg Sheil v Doneley (1901) 18 WN 160), and in any event should be adequately provided for by a conventional order for costs under the new costs regime in force as from 1 July 1994 pursuant to s208E to s208H of the Legal Profession Act 1987, which requires the assessor to assess a "fair and reasonable amount" after considering "whether or not it was reasonable to carry out the work to which the costs relate" and "what is a fair and reasonable amount of costs for the work concerned" and permits the assessor to have regard to the matters specified in s208G. These provisions provide a sufficient degree of flexibility to accommodate a variety of different circumstances including those to be found in the present case." 9 The considerations referred to by McLelland CJ in Eq – coupled with the fact that I do not consider the situation dealt with sensibly by the amendment of 6 December 2002 to have involved "relevant delinquency" by the plaintiff (Oshlack v Richmond River Council (1998) 193 CLR 72) – lead to the conclusion that there should be simply an order that the plaintiff pay the first defendant's costs of the proceedings as agreed or assessed. 10 It is to be regretted that the submissions filed in the Registry on 6 December 2004 did not reach the court file within the following two months and that the parties were thereby inconvenienced. It is also to be regretted that this is not an isolated occurrence. On 8, 9 and 10 February 2005, I completed the hearing of a part heard matter in which several affidavits filed during December 2004 did not reach me until after the hearing had concluded. In that case, counsel were able to provide copies at the hearing, a course that was unfortunately not possible here where questions of costs were dealt with on written submissions. 11 In lieu of my decision of 4 February 2004 that there be no order as to the costs of the first defendant, I order that the plaintiff pay the first defendant's costs of the proceedings as agreed or assessed. **********