Joubert in his capacity as liquidator of Barry Ling Pty Ltd (in Liquidation) v Allan Jones (No 2) [2013] NSWSC 572

Supreme Court New South Wales

Medium Neutral Citation: Joubert in his capacity as liquidator of Barry Ling Pty Ltd (in Liquidation) v Allan Jones (No 2) [2013] NSWSC 572 Hearing dates: 2 April 2013 Decision date: 02 April 2013 Before: McCallum J Decision: No order as to costs Catchwords: PROCEDURE - judgments and orders - costs - costs of proceedings below to reflect outcome of appeal - no order as to costs of appeal Cases Cited: Joubert v Jones [2013] NSWSC 280 Category: Costs Parties: Randall Joubert (plaintiff) Allan Jones (first defendant) Jacqueline Jones (second defendant Representation: Counsel: S Golledge (plaintiff) R Marshall (defendants) Solicitors: Polczynski Lawyers (plaintiff) Bartier Perry (first defendant) Jacqueline Jones (second defendant) File Number(s): 2013/12643 Publication restriction: None

JUDGMENT - ex tempore 1HER HONOUR: I have this morning given judgment and published my reasons for dismissing the liquidator's appeal against the verdict for the first defendant in the court below and for allowing the appeal against the verdict for the second defendant in the court below: see Joubert v Jones [2013] NSWSC 280. 2In that judgment at [50], I indicated that I would hear the parties as to the costs of the proceedings below and in this Court. Having heard the parties, I propose to make the following orders as to the costs of the proceedings below: (1)that the plaintiff have leave to appeal against the order as to costs insofar as it concerns the second defendant; (2)that the appeal against that order be allowed; (3)that the order be vacated insofar as it concerns the second defendant and in lieu thereof that the second defendant be ordered to pay half of the plaintiff's costs of the proceedings below on the ordinary basis. 3As to the costs of the proceedings in this Court, I propose to make no order as to costs. 4My reason for ordering the second defendant to pay half of the plaintiff's costs of the proceedings below is that such an order gives effect to the general rule that costs follow the event whilst obviating the complexity of an assessment, which would have to differentiate between the costs incurred by the liquidator as against each of the two defendants. 5Mr Golledge, on behalf of the liquidator, has brought to my attention the fact that there was in the proceedings below a Calderbank letter dated 6 December 2011 which offered to compromise the proceedings for a result which has now been bettered by the verdict entered today. The verdict entered is in the sum of $70,000, whilst the Calderbank letter indicated that the liquidator would compromise the proceedings on the basis that he would accept $68,000 inclusive of costs and interest. As noted on behalf of the second defendant, however, the offer was addressed to both defendants. The claim was a joint claim against both defendants but the first defendant, Mr Jones, has been successful in retaining the verdict in his favour entered in the proceedings below. In all the circumstances, I consider the fair result to be simply to order Mrs Jones to pay half of the liquidator's costs. 6As to the costs of the proceedings in this Court, as noted in my earlier judgment at [4], the liquidator indicated at the outset of the hearing before me that he did not seek to disturb the verdict in favour of Mr Jones. Accordingly, the appeal as against him was dismissed by consent. That indication having come only on the morning of the hearing it would not, if Mr Jones were the only respondent to the appeal, have saved any costs. The appeal against Mrs Jones proceeded and was successful. In all the circumstances I think, and neither party sought to be heard against this, that a fair result would be to make no order as to costs. Those are the orders of the court. 7I note the undertaking to the Court given by the plaintiff not to enforce the judgment against the second defendant for a period of fourteen days.