Paul Ernest Simmons -v- Protective Commissioner of NSW also known as NSW Trustee [No 2] [2013] NSWSC 1770

Supreme Court New South Wales

Medium Neutral Citation: Paul Ernest Simmons -v- Protective Commissioner of NSW also known as NSW Trustee [No 2] [2013] NSWSC 1770 Hearing dates: 15 November 2013 Decision date: 29 November 2013 Jurisdiction: Equity Division Before: Hammerschlag J Decision: Plaintiff to pay the costs of the second and third defendants Catchwords: COSTS - no reason to depart from the usual rule that costs should follow the event Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Paul Ernest Simmons v NSW Trustee and Guardian [2013] NSWSC 1688 Category: Costs Parties: Paul Ernest Simmons - Plaintiff Raymond John Henwood - Second Defendant Dorothy Frances Simmons - Third Defendant Representation: Counsel: P.E. King - Plaintiff J. Ireland QC - Second Defendant S.F. Hughes - Third Defendant Solicitors: Stuart Percy & Associates - Plaintiff Denniston & Day - Second Defendant Boyd House & Partners - Third Defendant File Number(s): 2011/79920

Judgment 1On 15 November 2013 I dismissed the plaintiff's motion for leave to amend his Statement of Claim ("the dismissed motion"): see Paul Ernest Simmons v NSW Trustee and Guardian [2013] NSWSC 1688. Terms used there have the same meaning here, unless the context otherwise indicates. 2I said I would hear the parties on costs. This has been done by way of written submissions. 3The costs of the motions which were the subject of the appeal ("the 2012 motions") were reserved by the Court of Appeal to me and the costs of the appeal which resulted in the plaintiff being given the additional opportunity to seek leave to amend were ordered by the Court of Appeal to be the parties' costs of the proceeding. 4The second defendant and Dorothy put that the plaintiff has failed and that the costs should follow the event in accordance with the usual rule: Uniform Civil Procedure Rules 2005 (NSW) Pt 42 r 42.1. 5They submit that the plaintiff should pay the costs of the 2012 motions, the proceedings and the dismissed motion. 6The plaintiff puts that each party should pay his or her own costs, or alternatively, that he should pay no more than 1/3 of the defendants' costs because he succeeded in the Court of Appeal with his appeal from the first judgment (which should be treated as two successes) and failed in the present application, so that he has had two wins and one loss. He submits that, put another way, he has been put to the expense of two wasted hearings. 7He puts that the Court should reflect upon the proposition at the heart of the plaintiff's case, not disputed, that the plaintiff remains the beneficial owner of Goonoo and whilst he has failed because the statute has been pleaded successfully to defeat his claim, this does not alter the equities of the matter. He puts that the plaintiff is a poor priest who has been homeless for much of the twenty years involved, who has had complex and ongoing psychiatric issues to cope with, and these considerations should be reflected in costs. 8He puts that he has won two appeals "but it appears that the advice of lawyers had defeated his rightful equity, according to the Equity Division". He puts that his successes in the Court of Appeal should be reflected in the costs order. 9It seems to me that the substance of what has happened is different to that sought to be portrayed by the plaintiff. 10The Court of Appeal upheld the second defendant's and Dorothy's original contention made in the 2012 motions that the proceedings were bound to fail because he had not pleaded fraud, but ruled that the plaintiff should be given a further opportunity to plead it. Hence, that Court ordered that the costs of the appeal should be the parties' costs of the proceeding. 11The plaintiff availed himself of the opportunity so offered but failed to realise it. The consequence is that his case against the second defendant and Dorothy has failed for one of the reasons motivated by them and upheld by the Court of Appeal. 12It is not the plaintiff who has been put to the expense of two wasted hearings but the second defendant and Dorothy who have been put to the expense of three wasted hearings, the 2012 motions, the appeal and the dismissed motion. His case against them has failed in its entirety. This is not altered by his personal circumstances even if they are relevant, which I consider they are not. 13In my judgment the usual rule that costs follow the event should apply. I do not think that the circumstances of this case warrant departure from it. 14The plaintiff is to pay the costs of the proceedings of the second defendant and Dorothy including the 2012 motions, the appeal and the dismissed motion. 15In his written submissions, the plaintiff says: The Court is also asked respectfully to correct paragraph 84 of its Reasons. No assurance and no representation as there stated was made by or for the plaintiff. 16This submission is wrong in fact because to my observation I received the confirmation referred to in paragraph 84. There is thus no need to correct it.