Morris v Hanley [2004] NSWSC 62

New South Wales Supreme Court

CITATION : Morris v Hanley [2004] NSWSC 62 HEARING DATE(S) : 28 April, 1 May, 5 & 12 June and 17 December 2003, 5 & 6 February 2004 JUDGMENT DATE : 17 February 2004 JURISDICTION: Equity JUDGMENT OF : Hamilton J DECISION : Defendants awarded costs of proceedings generally.

CATCHWORDS : PROCEDURE [583] - Costs - Departing from general rule - Conduct of parties - Misconduct etc - Generally - Application to deprive successful defendants of costs - Misconduct by defendants in subject transactions and in conduct of proceedings. Morris v Hanley [2003] NSWSC 42 CASES CITED : Ritter v Godfrey [1920] 2 KB 47 Sunday Times Newspaper Co Ltd v McIntosh (1933) 33 SR (NSW) 371 Zelino v Budai [2001] NSWSC 501 Janine Morris (P) Jack Norman Hanley (D1) Geoffrey Donald Reid (D2) Lynda Maree Cole (D3) Christine Valmae Hayward (D4) PARTIES : Anthony Bodycote (D5) Robyn Janelle Haydon (D6) Daphne Olive Boyd (D7) Beverley Joy Armfield (D8) Gayle Hanley (D9) Cecil Bellchambers (D10) Mariani Holdings Pty Limited (D11) FILE NUMBER(S) : SC 2650/97 COUNSEL : In person (P) P T Taylor then P F Walsh, Solicitor (Ds) SOLICITORS : In person (P) Parker & Kissane (Ds)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

TUESDAY, 17 FEBRUARY 2004

2650/97 JANINE MORRIS v JACK NORMAN HANLEY & ORS JUDGMENT 1 HIS HONOUR: In these proceedings the plaintiff brought claims against 11 defendants for breach of fiduciary duty, conspiracy and negligence. She was completely unsuccessful. There was judgment for the defendants generally: Morris v Hanley [2003] NSWSC 42 ("my judgment"). This would normally result in her being ordered to pay the defendants' costs of the proceedings. But she claims a special order for costs, either to the effect that there be no order as to costs or alternatively that the defendants be ordered to pay her costs of the proceedings. She has prepared a schedule of particulars of the matters that she relies on in support of this argument and also written submissions in support of it. 2 She correctly identified the relevant principles on which this discretion is exercised as those set out in Ritter v Godfrey [1920] 2 KB 47 where Atkin LJ said at 60: "In the case of a wholly successful defendant, in my opinion the Judge must give the defendant his costs unless there is evidence that the defendant (1) brought about the litigation, or (2) has done something connected with the institution or the conduct of the suit calculated to occasion unnecessary litigation or expense, or (3) has done some wrongful act in the course of the transaction of which the plaintiff complains."