Clarke v Spurway [2009] NSWCA 180

New South Wales Court of Appeal

CITATION: Clarke v Spurway [2009] NSWCA 180

HEARING DATE(S): 30 June 2009

JUDGMENT DATE: 30 June 2009

JUDGMENT OF: Hodgson JA at 1; Ipp JA at 9

EX TEMPORE JUDGMENT DATE: 30 June 2009

DECISION: The application for leave to appeal dismissed with costs.

CATCHWORDS: PROCEDURE – Application for leave to appeal – Deficiencies in preparation of White Book – Relatively small amount of costs involved – Preparation of appeal involving substantial further costs – Whether leave to appeal should be granted.

CATEGORY: Procedural and other rulings

PARTIES: Margaret Har CLARKE (Applicant) Mary SPURWAY (Respondent)

FILE NUMBER(S): CA 40036/09

COUNSEL: D A LLOYD (Applicant) G A RICH (Respondent)

SOLICITORS: Byrnes & Cox Lawyers (Applicant) Stacks - The Law Firm, Port Macquarie (Respondent)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 6168/07

LOWER COURT JUDICIAL OFFICER: McLaughlin AsJ

LOWER COURT DATE OF DECISION: 24 November 2008

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40036/09 SC 6168/07

HODGSON JA IPP JA

30 JUNE 2009 Margaret Har CLARKE v Mary SPURWAY Judgment 1 HODGSON JA: The court is dealing with an application for leave to appeal from a decision in relation to costs made by Associate Justice McLaughlin. 2 During the course of the hearing, it became apparent that there were significant deficiencies with the way the White Book in the case had been prepared. Most significantly, the White Book did not make clear what evidence in relation to the decision on costs had been before Associate Justice McLaughlin, and it is clear that the White Book did in fact omit an important piece of evidence that was before Associate Justice McLaughlin. 3 It is very important in applications such as this that the White Book make it clear what evidence was before the primary decision maker, and include all the evidence that is relevant to the application; and if it is sought to have the Court consider any additional evidence, that this evidence be appropriately identified and grounds be raised as to why this Court should look at additional evidence. 4 This deficiency has complicated the hearing and raised difficulties. However, I have considered the matters raised as best I can, notwithstanding these difficulties, and have reached the view, for reasons I will give, that the application for leave should be refused. 5 One matter that was dealt with by evidence produced during the hearing of the application was that the respondent, the beneficiary of the order for costs, had claimed an amount of $44,000 in relation to costs. However, it is apparent that the amount actually in issue on the hearing of any appeal would be significantly less than this amount. I say that, because it is likely that this amount would be reduced somewhat on assessment, and also because, on my best assessment of the merits of the case, it is highly likely that the result of any appeal would leave some liability for some costs against the applicant and in favour of the respondent. 6 I say this because it does seem to me that the affidavit that was handed up at the hearing before us, and that was relied on by the primary judge, does seem to support a conclusion that the respondent was justified in commencing the proceedings, and did commence the proceedings because of prior unreasonable conduct by the applicant in relation to the sale of the property. It seems to me that, if the arguments sought to be advanced by the applicant were dealt with on appeal and were successful, it is still likely that the respondent would remain the beneficiary of an order for costs of the proceedings up to some time in about March or April 2008. 7 In relation to costs after that date, there is an arguable case of error by the Associate Justice that might succeed on appeal and result in an order that the costs thereafter be left with the respective parties. However, as I have said, the amount involved would in my view be very significantly less than the $44,000. The deficiencies of the material presented to this Court are such that there would be substantial preparation still required for the hearing of the appeal, and the hearing of the appeal would involve the incurring of very substantial additional costs. 8 Having regard to all the considerations that I have referred to, it seems to me that the appropriate order is that the application for leave to appeal be dismissed with costs. 9 IPP JA: I agree. **********