New South Wales Supreme Court CITATION : Bennett v Goodwin [2005] NSWSC 1256 HEARING DATE(S) : 6 December 2005 JUDGMENT DATE : 6 December 2005 JURISDICTION : Equity JUDGMENT OF : Campbell J DECISION : See para 9 CATCHWORDS : PROCEDURE – costs – of interlocutory motion when proceedings for purpose of which motion was brought are not decided, but motion has been decided – costs of proceedings when merits of case not decided – form of costs order when there is a high likelihood, but not a certainty, that proceedings will not need to be decided CASES CITED : re Minister for Immigration and Ethnic Affairs ex parte Lai Qui (1997) 186 CLR 622 Gail Margaret Bennett - Plaintiff PARTIES : Clark Philip Ross Goodwin - First Defendant Beulah Catherine Goodwin - Second Defendant FILE NUMBER(S) : SC 5085/04 M Bechelli, solicitor - Plaintiff COUNSEL : D Zreik, solicitor - Defendants Kingston Swift - Plaintiff SOLICITORS : Jackson Smith - Defendants LOWER COURT JURISDICTION : IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EQUITY LIST CAMPBELL J TUESDAY 6 DECEMBER 2005 5085/04 GAIL MARGARET BENNETT v CLARK PHILIP ROSS GOODWIN & ANOR JUDGMENT – Ex Tempore 1 HIS HONOUR: There are several questions which the Court needs to decide. One of them concerns the costs of a notice of motion which was filed by the plaintiff on 14 November 2005 seeking to join Mrs Goodwin senior as a defendant. When that notice of motion came on for hearing it was opposed by Mr Goodwin, unsuccessfully, and orders for the joinder of Mrs Goodwin were made. As it is a notice of motion concerning an interlocutory matter relevant to the balance of the proceedings which have not been disposed of by my earlier judgment, the usual order of the Court would be that the costs of that notice of motion be the applicant's costs in the balance of the proceedings. I will return to that notice of motion later in this judgment. 2 As a result of my earlier judgments in the matter, judgment has been entered for a monetary sum. However, the question of whether an order for sale of the property should be made was not disposed of. Because Mrs Goodwin senior was a co-registered proprietor of the charged property, it would have been necessary for her to be joined as a party, to enable the question of whether an order for sale should be made to be decided. 3 Today, Mr Bechelli appears for the plaintiff, and informs me that it will probably not be necessary, as things presently appear, for the application for an order for sale to be proceeded with. That situation arises because a registered mortgagee of the property is proposing to exercise a power of sale. The course Mr Bechelli asks I take is to stand the proceedings over to a date in February, on the basis that, if they are not re-listed by an earlier date in February, then the proceedings will be automatically dismissed at the end of that earlier day, and the hearing date to which the proceedings are stood over vacated. The intention is to re-list them only if, for reasons not presently foreseen, the mortgagee sale does not proceed. 4 In my view, that is the appropriate course to take. Proceeding that way is most likely to result in the just, quick and cheap disposal of the real issues which remain between the parties. 5 The question of the costs which have been incurred in the balance of these proceedings needs to be considered on the footing that there is a high practical likelihood, but not a certainty, that the balance of the proceedings will not need to be decided, and that the automatic dismissal of the proceedings will occur in February. If that eventuality came about, the issues which remain in the proceedings would not have been decided. Where litigation has been brought, but not decided on the merits, the Court can still make an order for costs. However, it makes any such order not by predicting what the outcome of the proceedings might have been, had they been run, but by considering whether, insofar as the proceedings have advanced, one party has acted so unreasonably that the other party should obtain the costs of the action: re Minister for Immigration and Ethnic Affairs ex parte Lai Qui (1997) 186 CLR 622 at 624. 6 In the present case, the joinder of Mrs Goodwin senior was so obviously necessary to the advancing of the case that Mr Goodwin was, in my view, acting unreasonably in opposing it. For that reason, even though there is a high likelihood that the merits of the action may not be determined, it is appropriate to apply the Lai Qui principle to the costs of that interlocutory motion by ordering the first defendant to pay the costs of the plaintiff of the notice of motion of 14 November 2005. 7 So far as any other costs which have been incurred since I gave judgment on the substantive questions which lead to the quantum determination, again the principles in Lai Qui apply. I am not satisfied that either party has acted so unreasonably that an order for costs should be made against the other. 8 Because the matter will not necessarily be finally disposed of without any need for a further hearing, any order for costs concerning the balance of the proceedings can be made only on a contingent basis. However, to allow what looks like a high practical prospect of the matter not proceeding to go ahead without any further incurring of costs by the parties, the appropriate course to take is to make an order for costs now, namely, that there be no order as to costs, but to make it on a contingent basis. 9 The orders therefore are: 1. I order the first defendant to pay the costs of the plaintiff of the Notice of Motion of 14 November 2005. 2. I stand the proceedings over to 9.30 am on 28 February 2006 before me. 3. I reserve liberty to any party to re-list the proceedings before me on 4 days notice to the other. 4. If the proceedings have not been re-listed so as to be before me pursuant to that re-listing at a time earlier than 5.00 pm 24 February 2006, the following order shall take effect at 5.00 pm 24 February 2006: (i) Insofar as the proceedings are not already the subject of orders, they are dismissed, and the hearing on 28 February 2006 is vacated. (ii) Subject to all costs orders made so far, each party shall bear his or her own costs. ********** 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.