Supreme Court New South Wales Medium Neutral Citation: Gani v Maiolo (No 2) [2014] NSWSC 1471 Hearing dates: On written submissions Decision date: 27 October 2014 Jurisdiction: Common Law Before: Hall J Decision: The plaintiff is to pay the defendants' costs of the proceedings on the ordinary basis Catchwords: COSTS - order that costs be costs in the cause Legislation Cited: Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005 Cases Cited: Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 Gani v Maiolo [2011] NSWADT 219 Gani v Maiolo [2012] NSWADTAP 10 Gani v Maiolo [2012] NSWSC 1417 Gani v Maiolo [2013] NSWCA 107 His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand & Anor v The Macedonian Orthodox Community Church St Petka Incorporated & Anor (No 2) [2007] NSWCA 142 Category: Consequential orders Parties: Mohammed Nurul Gani (Plaintiff) Raffaele Maiolo (First Defendant) Maria Maiolo (Second Defendant) Representation: Counsel: Mr A Kumar (Plaintiff) Ms M Tibbey (First and Second Defendants) Solicitors: Karam Ramrakha (Plaintiff) LC Muriniti & Associates (First and Second Defendants) File Number(s): 2012/214069 Judgment 1The plaintiff, Mohammed Nurul Gani, commenced proceedings by way of summons filed on 10 July 2012. The plaintiff sought to appeal from the decisions of the Administrative Decisions Tribunal ("ADT") made on 14 September 2011 (Gani v Maiolo [2011] NSWADT 219) and the ADT Appeal Panel - Internal made on 5 March 2012 (Gani v Maiolo [2012] NSWADTAP 10). Those decisions related to the plaintiff's claim for relief arising from his eviction from retail premises leased from the defendants. 2On 27 November 2012 I delivered the principal judgment in these proceedings and ordered that the plaintiff's summons be dismissed: Gani v Maiolo [2012] NSWSC 1417. I further ordered that the plaintiff was to pay the defendants' costs of the proceedings on the ordinary basis unless the plaintiff wished to be heard on the question of costs and lodge written submissions. 3I subsequently received written submissions dated 10 December 2012 from Mr Kumar who appeared on behalf of the plaintiff. In those submissions the plaintiff did not dispute the order made in relation to costs, save for the costs of the defendants' Notice of Motion dated 5 September 2012. 4I have also had the benefit of written submissions in reply dated 23 January 2013 from Ms Tibbey who appeared on behalf of the defendants. Procedural History 5The principal judgment contains a complete history of the proceedings and it is therefore unnecessary to refer to it in detail here. 6The defendants filed a Notice of Motion dated 5 September 2012 in which the following orders were sought: (1)No stay be granted of the orders of the ADT Appeal Panel (being orders made on 5 March 2012 and 20 June 2012). (2)Leave be refused to appeal against the Order of the ADT Appeal Panel as to costs of the appeal. (3)Time for lodging the Appeal not be extended and the Appeal be dismissed; or, in the alternative, (4)The Plaintiff pay the Court the sum of $20,751.32 towards costs of the ADT Appeal Panel proceedings, to be held by the Court until the conclusion of these proceedings or the further Order of the Court. (5)Security of the costs of this Appeal be granted in the sum of $10,000, to be paid into Court within 14 days hereof. 7Following the filing of the Notice of Motion I offered the defendants with the opportunity of an early and final hearing in exchange for not proceeding with the Notice of Motion. This was accepted by the defendants. 8As a result of the proceedings being expedited, it became necessary to only consider order 2 sought in the Notice of Motion. At [117] in the principal judgment I concluded that there was no basis to appeal the Appeal Panel's decision as to costs and accordingly refused to grant leave. 9On 2 May 2013 the Court of Appeal (Basten and Meagher JJA) dismissed the plaintiff's application for leave to appeal from my judgment and ordered the plaintiff to pay the defendants' costs of the application: Gani v Maiolo [2013] NSWCA 107. Plaintiff's Submissions 10As noted above, the plaintiff disputed the orders made as to costs in respect of the defendants' Notice of Motion. The plaintiff does not otherwise challenge the costs order made in the principal judgment. 11In his written submissions the plaintiff argued that the defendants should pay the plaintiff's costs in respect of the Notice of Motion. 12The plaintiff submitted that although this Court did not grant leave to appeal from the Appeal Panel's decision as to costs, it was implicit that the defendants had not been successful in its Notice of Motion as the substantive matter had been resolved in another way and cannot be said to have been resolved in favour of the defendants. 13It was further argued that the Notice of Motion was determinative of separate issues and sought its own relief and was accordingly its own "event" for the purpose of the general rule that costs follow the event: Uniform Civil Procedure Rules 2005, r 42.1. 14Further, it was argued that the Notice of Motion was determinative of different issues. Defendants' Submissions 15The defendants submitted that the plaintiff should pay the costs of the entire proceedings, including the Notice of Motion, as a result of its success in defending the appeal from the ADT. 16Further, it was submitted that by accepting an early hearing date in preference to not proceeding with the Notice of Motion, the defendants cannot be considered to have "lost" the motion. Although four of the orders sought were not considered by this Court, the defendants cited Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 at [38] as authority for the proposition that it is not appropriate to dissect parts of the motion in relation to which any order not consistent with the outcome of the proceedings as a whole should be made. 17Accordingly, it was argued that the appropriate order is that costs be costs in the cause, on the following bases: (1)The Court has a wide discretionary power to determine costs orders under s 98 of the Civil Procedure Act 2005. (2)The Notice of Motion was filed for the purposes of protecting its position and reducing its exposure and was a reasonable step to take in all the circumstances. (3)The Notice of Motion did not go to a separate hearing and the plaintiff therefore received the benefit of not having to argue the motion or being required to comply with the orders sought in the Notice of Motion in the event the defendants were successful. Further, both parties received the benefit of an expedited hearing date. (4)It is clear from the principal judgment that there was little merit in the plaintiff's appeal from the ADT. (5)There is no reason to depart from the usual rule that costs follow the event. 18The defendants also included in its written submissions the arguments it would have made on the hearing of the Notice of Motion, had it proceeded. However, it is not necessary to detail those submissions here. Consideration 19There is no dispute that the plaintiff should pay the defendants' costs of the proceedings. However, dispute arises as to whether such an order should require the plaintiff to pay the defendants' costs in respect of the Notice of Motion dated 5 September 2012. 20The general rule in relation to costs is that costs follow the event: Uniform Civil Procedure Rules 2005, r 42.1. Such costs are to be assessed on the ordinary basis unless the court orders otherwise: r 42.2. 21Uniform Civil Procedure Rule 42.7 provides that: "(1) Unless the court orders otherwise, the costs of any application or other step in any proceedings, including: (a) costs that are reserved, and (b) costs in respect of any such application or step in respect of which no order as to costs is made, are to be paid and otherwise dealt with in the same way as the general costs of the proceedings." 22This rule was explained in His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand & Anor v The Macedonian Orthodox Community Church St Petka Incorporated & Anor (No 2) [2007] NSWCA 142 as follows: "An order that the costs be 'costs in the cause' or 'costs in the proceedings' (the terms are interchangeable) means that the costs of the interlocutory proceedings correspond with the final order for costs in the action. Thus if, in the final proceedings, the plaintiff is successful and an order for costs of the final hearing is made in the plaintiff's favour, the plaintiff gets the costs of the interlocutory proceedings as part of the costs of the action against the defendant, regardless of who was successful on the interlocutory application." (at [18]) 23I have determined that the defendants, having been the successful party, are entitled to an order for costs. There is no basis to depart from the usual rule. 24Accordingly, the plaintiff should pay the defendants' costs of the proceedings, including the costs in respect of the Notice of Motion, on the ordinary basis. 25I make the following order: (1)The plaintiff is to pay the defendants' costs of the proceedings on the ordinary basis. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 October 2014