Chaina v Presbyterian Church (NSW) Property Trust (No. 19) [2013] NSWSC 1601

Supreme Court New South Wales

Medium Neutral Citation: Chaina v Presbyterian Church (NSW) Property Trust (No. 19) [2013] NSWSC 1601 Hearing dates: 4 November 2013 Decision date: 04 November 2013 Jurisdiction: Common Law Before: Davies J Decision: Plaintiffs should pay the whole of the costs of both the Plaintiffs' and the Defendant's Motions. Catchwords: COSTS - motion by Plaintiffs to re-admit evidence rejected in earlier judgment - fresh arguments not previously raised - Plaintiffs partly successful - Plaintiffs to pay costs Legislation Cited: Evidence Act 1995 Cases Cited: Chaina v The Presbyterian Church (NSW) Property Trust (No 13) [2013] NSWSC 1057 Chaina v The Presbyterian Church (NSW) Property Trust (No 16) [2013] NSWSC 1494 Category: Costs Parties: Mathew Chaina (First Plaintiff) and ors Presbyterian Church (NSW) Property Trust (First Defendant) and ors Representation: Counsel: Mr A Dawson (Plaintiffs) R Stitt QC, G L Turner & H Stitt (Defendants) Solicitors: In person (Plaintiffs) Curwoods Lawyers (Defendants) File Number(s): 2002/69354

Judgment 1In Chaina v The Presbyterian Church (NSW) Property Trust (No 16) [2013] NSWSC 1494, I determined two Motions. One was by the Plaintiffs in which they sought to readmit into evidence reports that I had rejected in my judgment in Chaina v The Presbyterian Church (NSW) Property Trust (No 13) [2013] NSWSC 1057. The other Motion was a Motion by the Defendants seeking orders pursuant to s 192A of the Evidence Act 1995 that the evidence of a number of witnesses of the Plaintiffs not be adduced as a result of my rulings in Chaina (No 13). The evidence of these witnesses was said no longer to be relevant. 2On the Plaintiffs' Motion, the Plaintiffs were partly successful in that I readmitted the report of Professor Dowling. The Plaintiffs also obtained leave to rely on some but not all of a number of expert reports in reply which they had sought in the Motion. 3The Defendants were successful on their Motion in relation to all reports that were concerned with Professor Layton's reports but not in relation to those that were concerned with Professor Dowling's reports. 4The basis on which I readmitted Professor Dowling's report is set out in Chaina (No 16). In short, I formed the view that if my attention had been directed to particular parts of Professor Dowling's report and particular submissions made about those parts, I might have come to a different view than the view I formed in Chaina (No 13). 5Mr Dawson, who appeared for the Plaintiffs on these Motions, sought to argue that a perusal of various portions of the transcript showed that the point that was being made to distinguish the industrial products from the domestic products had indeed been made by Mrs Chaina, in particular when she addressed me on the Motion in August that formed the basis of Chaina (No 13). Mr Dawson took me, for example, to a passage at transcript 2463, line 19 and thereafter, where Mrs Chaina was making the distinction between what is important in the industrial market and what is important in the domestic market. 6I have read each of the transcript passages to which Mr Dawson directed my attention. Whilst I accept that Mrs Chaina made that distinction in general terms, at no time was my attention directed by her to the particular parts of Professor Dowling's report that were relevant for the view that I ultimately formed in Chaina (No 16) that the report should be allowed into evidence at this stage. 7In relation to the expert reports in reply, I determined that reply reports in general should not be permitted to be served and relied upon by the Plaintiffs because no attempt had been made to obtain leave to do this at earlier times when it ought to have been done. I determined, however, that the Plaintiffs should be entitled to serve and rely on reports that dealt only with the 2013 reports of Dr Wynn-Hatton and Dr McDonald. 8The Plaintiffs had always been told that they had the right to serve reports in reply to those 2013 reports and no time had been stipulated in that regard. I set out in Chaina (No. 16) at [214] -[215] those portions of the transcript where the Plaintiffs were so informed. Despite the lateness of their serving such reports, I held that there would be little prejudice to the Defendants if those reports were permitted to be relied upon. I do not, however, consider that that last matter amounts to success on the Plaintiffs' parts on the Motion. 9The issue is therefore what costs order should be made because I readmitted Professor Dowling's report. Mr Dawson submitted that either each part should pay its own costs or the Plaintiffs should pay 50% of the Defendant's costs. 10Almost the whole of the argument for five days concerned the re-admission of the reports of Professors Dowling and Layton. What the Plaintiffs sought to do was to revisit the arguments concerning those reports and, in effect, to set aside my judgment in Chaina (No. 13). The matters put by Mr Dawson were not put by the Plaintiffs when the s 192A application was argued in August. 11Having re-read the transcript for 8 August when the Motion was argued I am satisfied that the appropriate parts of Professor Dowling's report were not drawn to my attention in anything that was put to me at the time. That meant that the five days of argument on the two Motions were brought about by the failure of the Plaintiffs to argue the 192A application in August in a way that would have produced the result that Chaina (No 16) produced. 12In my opinion the Plaintiffs should pay the whole of the costs of both the Plaintiffs' and the Defendant's Motions.