Supreme Court New South Wales Medium Neutral Citation: Belcastro v Nakhl & Ors (No 2) [2014] NSWSC 1559 Hearing dates: On the papers Decision date: 07 November 2014 Jurisdiction: Common Law Before: Campbell J Decision: I confirm the costs order pronounced on 24th September 2014. Catchwords: COSTS - costs of interlocutory motion - costs in the cause - whether costs order should be varied - where both parties enjoyed a measure of success Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) , r 42 Cases Cited: J T Stratford Ltd v Lindley [1969] 1 WLR 1547; Petar v Macedonian Orthodox Community Church St Petka Inc (No 2) [2007] NSWCA 142 Category: Interlocutory applications Parties: Vincent Paul Belcastro (First Plaintiff)Joanne Belcastro (Second Plaintiff) Liberty Mutual Insurance Company (Ninth Defendant) Hiscox Dedicated Corporate Member Limited (Tenth Defendant) Arch Underwriting (Eleventh Defendant) Barbican Financial & Professional Lines Consortium (Twelfth Defendant) Representation: On the papers Solicitors: Emily Max Lawyers (Plaintiffs) Moray & Agnew (9th - 12th Defendants) Emily Max Lawyers (Plaintiffs) Moray & Agnew (8th – 12th Defendants) File Number(s): 2013/371629 Judgment 1This judgment deals with an application to vary the costs order pronounced in my judgment of 24th September 2014: (This decision assumes familiarity with my previous decision [2014] NSWSC 1305). I ordered that the costs of the motion were to be costs in the cause. In pronouncing that order I reserved liberty to each party to apply for a variation of the costs order by lodging written submissions with my chambers within 14 days, not exceeding three pages. 2That liberty was exercised by SydFa's insurers (insurers) by forwarding written submissions to my chambers on 8th October. The plaintiffs' written submissions were received on 13th October in response. 3The general rule is that costs follow the event unless it appears to the Court that some other order ought to be made: r 42.1 Uniform Civil Procedure Rules 2005 (NSW). 4Rule 42.7 deals with interlocutory applications. It 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. 5Where there is nothing to distinguish an application for costs arising from an interlocutory matter from a usual case there is much to be said for exercising the Court's discretion as to costs in a uniform manner by making what is commonly referred to as the "usual order" that being "costs in the cause" : Petar v Macedonian Orthodox Community Church St Petka Inc (No 2) [2007] NSWCA 142 at [16] - [32] see also J T Stratford Ltd v Lindley [1969] 1 WLR 1547 at 1553 per Lord Denning MR. 6The basis upon which the insurers' seek to vary the costs order can be summarised, without injustice, as a contention that the central issue in contest on the day was the adequacy of the plaintiffs' pleadings, an issue which was resolved in their favour. They also say that the plaintiffs were put on notice of the inadequacy of the pleadings as early as February 2014 and failure to heed this warning necessitated the contested motion. 7The plaintiffs' submit that the motion sought the joinder of the insurers and this was resolved in their favour. For this reason they won the day and should be entitled to costs. 8In argument learned Senior Counsel for the insurers indicated that his clients had no issue with joinder but said that joinder should not occur until the pleadings complied with the rules. I ordered the joinder of the insurers, expressing the view that such a step was not contingent on the pleadings being compliant. The same time I struck out the pleadings against the insurers and directed the plaintiffs to replead. 9In my judgment of the 24th I gave the following reasons at [52] for costs: I have not heard the parties in relation to costs. One view of it is that SydFA's insurers have won the only point substantially in issue which is whether the proposed pleading against them adequately complied with the rules. Another view is that I have been persuaded to permit the joinder of the insurers now rather than later after the insurers have satisfied themselves about the plaintiffs' re-pleading. The "event", therefore, may be characterised as something of a draw. This suggests that the costs of the parties should be in the cause. I will pronounce an order in that form but grant liberty to the parties to apply to vary that order by lodging written submissions within 14 days of today. 10Having considered the submissions of each side I remain of that view. The orders I pronounced constitute "the event" and each party has had a measure of success and failure. Whilst each has sought to emphasise their particular success and downplay their particular failure no delicate balancing act is called for in relation to costs. 11I confirm the costs order pronounced on 24th September 2014. ********** 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: 07 November 2014