Welker v Rinehart [2012] NSWSC 1637

Supreme Court New South Wales

Medium Neutral Citation: Welker v Rinehart [2012] NSWSC 1637 Hearing dates: 7 November 2012 Decision date: 07 November 2012 Jurisdiction: Equity Division Before: Brereton J Decision: Defendants pay 80 per cent of the plaintiffs' costs of the motions heard on, and proceedings on, 12 September 2012 Catchwords: COSTS Cases Cited: Welker v Rinehart (No 10) [2012] NSWSC 1330 Category: Costs Parties: Hope Rinehart Welker - First plaintiff John Langley Hancock - Second plaintiff Bianca Hope Rinehart - Third plaintiff Gina Hope Rinehart - First Defendant Ginia Hope Frances Rinehart - Second defendant Representation: Counsel: Mr DFC Thomas - Plaintiffs Mr C Bova - First defendant Mr F Kunc SC w Mr W Flynn - Second defendant Solicitors: Johnson Winter & Slattery - Plaintiffs Corrs Chambers Westgarth - First defendant Gadens - Second defendant File Number(s): 2011/ 285907

Judgment (ex tempore) 1HIS HONOUR: In judgment given on 31 October 2012, I dealt with the residue of the motions that had been heard by the court on 12 September 2012 [Welker v Rinehart (No 10) [2012] NSWSC 1330]. In short, the plaintiff succeeded in opposing an oral application that the proceedings be referred to mediation; in opposing the application for summary dismissal of their case; in seeking leave to amend their statement of claim; and in seeking to set aside a notice to produce. The defendants succeeded in opposing the plaintiffs' motion that earlier costs orders be made assessable forthwith. 2The application for referral to mediation took very little time and involved very little material. The application for the "forthwith" costs order was the subject of written submissions, but no oral argument was addressed to it. The application to set aside the notice to produce took some, but only a relatively small proportion, of the time devoted to oral argument. By far the bulk of the argument addressed the application for summary dismissal and the application for leave to amend, and the argument on those issues was closely interrelated. 3It is undesirable to make separate costs orders in respect of all of the motions heard that day, because that would involve a taxing officer having to seek to apportion the time spent on the day in question. When one looks at the totality of the applications dealt with and disposed of on and following that day, it can be seen clearly enough that the plaintiffs were substantially successful, but a number of factors need to be taken into account against that. 4The first is their failure on the application for a forthwith costs order. The second is their failure on the application for leave to amend in respect of the capital gains tax issue, to which some substantial time in written and oral submissions and in evidence was addressed. The third is that in any event obtaining leave to amend, though connected to the summary dismissal application, and though arising out of events which occurred after the original pleading was filed, at least in some respects, is nonetheless to some extent an indulgence. Indeed, ordinarily an applicant for leave to amend is required to pay the costs of the application. Although that is less so when the relevant events have arisen, as they did here, after the date of the previous pleading. 5An argument was made that a distinction should be drawn between the position of the first and second defendants in respect of their liability for costs, and in particular in respect of the application for leave to amend and the application for summary dismissal. So far as the application for summary dismissal is concerned, it is true that it was not the second defendant's motion, but the second defendant embraced it and supported it, and thereby made itself, in my view, jointly and severally liable for costs in respect of it. So far as the application for leave to amend is concerned, from my understanding of the way in which the case was conducted, the opposition to leave to amend on the part of the second defendant included the argument that the case was doomed to fail on the grounds relied on for summary dismissal. I do not see a basis for distinguishing between the positions of the defendants in that respect. 6It seems to me that, broadly, justice will be done by ordering that the defendants pay 80 per cent of the plaintiffs' costs of the motions heard on 12 September 2012. 7My order is that the defendants pay 80 per cent of the plaintiffs' costs of the motions heard on, and proceedings on, 12 September 2012.