Rose v Richards [2005] NSWSC 758

New South Wales Supreme Court

CITATION : Rose v Richards [2005] NSWSC 758

HEARING DATE(S) : 23/05/05

JUDGMENT DATE : 2 August 2005

JURISDICTION : Equity Division

JUDGMENT OF : Barrett J

DECISION : Plaintiff's costs of and incidental to notices of motion filed by defendant on 29 April 2005 and 6 May 2005 be paid by defendant, such costs to be assessed on the indemnity basis.

CATCHWORDS : PROCEDURE - costs - consent orders - no determination on the merits - pursuit by applicant of notice of motion after satisfactory explanations given by respondent - applicant's claims otiose and ill-conceived - order for costs on indemnity basis against applicant

Harry Smith Car Sales Pty Ltd v Claycom Vegetable Supply Co Pty Ltd (1978) 29 ACTR 21 CASES CITED : Oshlack v Richmond River Council (1998) 193 CLR 72 Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622

Laurie Rose - Plaintiff PARTIES : Garry Richards - Defendant

FILE NUMBER(S) : SC 5948/01

Mr A.E. Maroya - Plaintiff COUNSEL : Mr J.M. Morris - Defendant

Stuart Fowler & Partners - Plaintiff SOLICITORS : Defendant - In person

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BARRETT J

Date

5948/01 LAURIE ROSE v GARRY RICHARDS JUDGMENT 1 On 23 May 2005, I made, by consent, orders dismissing notices of motion filed by the defendant on 29 April 2005 and 6 May 2005. The plaintiff claims an order that her costs of those notices of motion be paid by the defendant on the indemnity basis. 2 There was no hearing on the merits in relation to either notice of motion. The situation is therefore one to which the following observations of McHugh J in Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622 (at pp.624-4) are applicable: "In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties. To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action. In administrative law matters, for example, it may appear that the defendant has acted unreasonably in exercising or refusing to exercise a power and that the plaintiff had no reasonable alternative but to commence a litigation. Thus, for example, in R v Gold Coast City Council; Ex parte Raysun Pty Ltd , the Full Court of the Supreme Court of Queensland gave a prosecutor seeking mandamus the costs of the proceedings up to the date when the respondent Council notified the prosecutor that it would give the prosecutor the relief that it sought. The Full Court said that the prosecutor had reasonable ground for complaint in respect of the attitude taken by the respondent in failing to consider the application by the prosecutor for approval of road and drainage plans.