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. Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried. This is perhaps the best explanation of the unreported decision of Pincus J in South East Queensland Electricity Board v Australian Telecommunications Commission where his Honour ordered the respondent to pay 80 per cent of the applicant's taxed costs even though his Honour found that both parties had acted reasonably in respect of the litigation. But such cases are likely to be rare. If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings. This approach has been adopted in a large number of cases." 3 The proceedings are proceedings under the Property (Relationships) Act 1984. On 19 August 2004, Master McLaughlin made orders which disposed of the substantive issues. Among them were an order that the plaintiff and the defendant (the parties to the de facto relationship) should cause the business of a company owned by them to be sold and the company thereafter to be wound up by way of voluntary winding up, an order that, if certain steps relevant to the first order were not taken within a certain time, the parties should cause the company to be wound up and an order that, upon winding up of the company under either of the earlier orders, the surplus should be divided between the parties in stated proportions. 4 The defendant filed a notice of motion on 29 April 2005. He filed a second notice of motion on 6 May 2005. It purported to replace the first notice of motion and both repeated and enlarged upon the claims in the first notice of motion. It is necessary, therefore, to consider the second notice of motion only. The claims therein were expressed as follows: "1. Jamieson Louttit to be appointed as the liquidator for the businesses known a A Creative Cuisine, Sydney P/L, and A C C Catering P/L. 2. For funds to be disbursed in accordance with the orders of Master McLaughlin made on 19 August 2005 within three days of winding-up. 3. That Garry Richards have the right to inspect and review the companies' records at the liquidator's office or at a place otherwise agreed. 4. That the plaintiff tell the Court what financial accounts and investments were in her control in the name of Jack Steingold during the course of the relationship. 5. Laurie Rose pay the legal expenses I incurred from solicitor Michael J Delaney whose mail I did not receive at the time Laurie illegally diverted my mail. 6. Jamieson Louttit be directed to calculate the amount of profits diverted from the business including but not limited to those of benefit to Laurie Rose, Dion Clark and Jack Steingold during the period of 7 May 2001 and the date of winding-up. 7. Should no agreement be possible within one month, for Jamieson Louttit be appointed to determine such adjustment of profits to shareholders, and for this to be disbursed within three days of his decision." 5 On 11 May 2005, the plaintiff's solicitors wrote to the defendant (who had drawn and filed the notice of motion without legal assistance) and said that the application was incompetent and that the winding up of the company was proceeding in accordance with the orders made by Master McLaughlin. The plaintiff's solicitors then gave a short account of what had been done in relation to the winding up and of the expected future course of it. The solicitors said that the winding up was proceeding in an orderly fashion and that the plaintiff was not in breach of any of the orders. They then invited the defendant to withdraw the extant notice of motion and indicated that if he did not do so there would be an application for dismissal with costs on the indemnity basis. 6 The defendant did not withdraw the notice of motion. When it came before the court on 23 May 2005, the defendant had the assistance of counsel on a pro bono basis. Before the matter was called on for hearing, the parties, by their counsel, had agreed that the notice of motion should be dismissed. It was in pursuance of that agreement that they indicated to the court the consent which caused me to make the consent order for dismissal. 7 The plaintiff says that the defendant's conduct in persisting with the notice of motion to a point where it came before the court only to be dismissed with the defendant/applicant's consent was so unreasonable as to attract an exception to the general expectation that matters dealt with by consent should be followed by no order as to costs. Mr Maroya of counsel, who appeared for the plaintiff, drew attention to the following observation of Blackburn CJ in Harry Smith Car Sales Pty Ltd v Claycom Vegetable Supply Co Pty Ltd (1978) 29 ACTR 21 (at pp.23-4): "The question of the costs of the application was argued. In a case where the application fails because the defendant shows a genuine possibility of defence to the claim, the costs are normally ordered to be costs in the cause, the principle being that should the defendant ultimately fail he will probably be ordered to pay the plaintiff's costs of the action which will then include the costs of the application; a corresponding result will occur if the plaintiff ultimately fails. In the exceptional case, however, where the application fails because it should not have been made, the defendant should have his taxed costs of the application: see Williams, Supreme Court Practice [14.3.23] where the principle is stated thus: 'Where the summons for final judgment is one that should not have been taken out and is a mere experiment , it should be dismissed with costs.' But I venture to dissent from the inclusion in a general statement of the rule of the words 'and is a mere experiment'. I think the same rule must apply where the reason why the application should not have been taken out is that it is wrong in principle. I see no reason for limiting the rule to the case where the application is 'a mere experiment'." 8 Mr Morris of counsel, who extended his pro bono representation to accommodate my request for written submissions on costs, submits on behalf of the defendant that the parties should bear their respective costs. He says that the defendant was entitled to ventilate his concerns and that regard should be had to the fact that he was an unrepresented litigant. 9 The application advanced by the defendant's notice of motion filed on 6 May 2005 should never have been made. It certainly should not have been persisted with after the explanations given by the plaintiff's solicitors. The claims for relief were in some cases otiose and in others ill-conceived. For example, the application for the appointment of a liquidator could only have been advanced in company with a claim for a winding up order, with both orders sought by means of originating process under the Supreme Court (Corporations) Rules 1999 supported by the evidence required by the rules. No attempt was made to proceed in that way. 10 The plaintiff is entitled to the costs order she seeks. It was perverse for the defendant to persist with his application after receiving the letter from the plaintiff's solicitors, particularly in view of the deficiencies from which the application suffered in any event. The defendant should not have been brought to court in the way she was. The fact that the defendant was unrepresented does not exempt him from adherence to the standards according to which litigation is conducted in this court. If he chooses to put the other party to unnecessary and unwarranted expense, he must take the financial consequences. There was, in this case, "relevant delinquency" of the kind contemplated by the High Court's decision in Oshlack v Richmond River Council (1998) 193 CLR 72. 11 I order that the plaintiff's costs of and incidental to the notices of motion filed by the defendant on 29 April 2005 and 6 May 2005 be paid by the defendant, such costs to be assessed on the indemnity basis. ************ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.