Singh v Singh (No 3) [2004] NSWSC 866

New South Wales Supreme Court

CITATION : Singh v Singh (No 3) [2004] NSWSC 866 revised - 20/09/2004 HEARING DATE(S) : Written submissions: 30/03/04; 12/08/04 JUDGMENT DATE : 20 September 2004 JURISDICTION: Equity Division JUDGMENT OF : Barrett J DECISION : No further order as to costs.

CATCHWORDS : COSTS - proceedings determined against plaintiff - subsequent and unsuccessful application by defendants for costs to be assessed on indemnity basis and to enforce supposed undertaking as to damages - claim by plaintiff for costs order re subsequent application - whether any separate "event" for costs purposes or merely minor aspect of overall controversy Salvo v New Tel Ltd (No 2) [2004] NSWSC 852 CASES CITED : Singh v Singh [2004] NSWSC 109 Singh v Singh (No 2) [2004] NSWSC 225 Mahendra Pratap Singh - Plaintiff PARTIES : Manoj Baalman Singh - First Defendant Shareen Lata Singh - Second Defendant FILE NUMBER(S) : SC 1804/03 COUNSEL : Mr M K Rollinson - Plaintiff Mr T J Morahan - Defendants SOLICITORS : Ramrakha Jenkins - Plaintiff John Spence & Associates - Defendants

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BARRETT J

MONDAY, 20 SEPTEMBER 2004

1804/03 – MAHENDRA PRATAP SINGH v MANOJ BAALMAN SINGH & ANOR (NO 3)

JUDGMENT 1 On 3 March 2004, I ordered that the plaintiff's summons be dismissed with costs and published reasons for judgment: Singh v Singh [2004] NSWSC 109. On 26 March 2004, I published further reasons in which it was ordered that a subsequent application by the defendants for an order that costs be assessed on the indemnity basis be dismissed and another subsequent claim by the defendants was dealt with: Singh v Singh (No 2) [2004] NSWSC 225. The defendants' further claim was that an inquiry should be ordered as to damages referable to an undertaking as to damages allegedly given by the plaintiff at an interlocutory stage. I disposed of that claim by a finding that no undertaking as to damages had ever been given by the plaintiff to the court. 2 The plaintiff now submits that he should have an order for costs in relation to so much of the total proceedings as involved the making and determination of the claims dealt with in the reasons of 26 March 2004. The defendants resist any such costs order, saying that the costs concerned should be costs in the cause to be covered by the existing order for costs in favour of the defendants. 3 The correct approach, in my view, is not to regard the subsequently agitated questions regarding indemnity costs and undertaking as to damages as an "event" in their own right for the purposes of Part 52A rule 11. Rather, those aspects should be dealt with on the footing that they represent issues in or elements of the proceedings as a whole. On that basis and in view of the fact that the two matters were, in terms of time and application of resources, very minor in the total context, the situation should be seen as one where the defendants were, in an overall sense, overwhelmingly successful and that there should be no attempt to dissect out, for costs purposes, the aspects in which they were not successful. This is not a matter in which any matter of significance arose after the principal judgment. 4 As to the applicable legal principles, I gratefully adopt the observations of McDougall J in Salvo v New Tel Ltd (No 2) [2004] NSWSC 852 at paragraphs 7 to 12. 5 I would add that if the course for which the plaintiff contends were adopted, there would be potentially an endless series of applications for costs orders. The plaintiff's application for costs in relation to the minor consequential applications determined on 26 March 2004, having now been unsuccessful, would be seen as a basis for a new application by the defendants for a costs order. And when any such new application by the defendants had been determined, the party who enjoyed success in that new application would make yet another application for a costs order. There are good reasons of practicality, in addition to the considerations I have mentioned, for ruling off the ledger in the way I have identified. 6 The order that the plaintiff pay the defendants' costs of the proceedings on the party and party basis is confirmed. There is no further costs order. **********