Crawford Giles and Associates Pty Limited v Spencer Grove Estate Pty Limited and James Edward Spencer (No 2) [2015] NSWSC 1398

Supreme Court New South Wales

Medium Neutral Citation: Crawford Giles and Associates Pty Limited v Spencer Grove Estate Pty Limited and James Edward Spencer (No 2) [2015] NSWSC 1398 Hearing dates: 23 September 2015 Date of orders: 23 September 2015 Decision date: 23 September 2015 Jurisdiction: Common Law Before: Bellew J Decision: The application for an order for indemnity costs made on behalf of the plaintiff is refused. Catchwords: PRACTICE AND PROCEDURE – Costs - Indemnity costs – Whether circumstances justified the making of an order for indemnity costs – No point of principle Legislation Cited: Uniform Civil Procedures Rules 2005 Cases Cited: Crawford Giles and Associates Pty Limited v Spencer Grove Estate Pty Limited and James Edward Spencer [2015] NSWSC 1396 Category: Principal judgment Parties: Crawford Giles and Associates Pty Limited – Plaintiff/Respondent Spencer Grove Estate Pty Limited ACN 164670958 - First defendant James Edward Spencer – Second defendant/Applicant Representation: Counsel: Mr White – Plaintiff/Respondent No appearance – Second defendant/Applicant Solicitor: Legal Minds – Plaintiff/Respondent File Number(s): 2014/215365 Publication restriction: Nil

Judgment

Judgment EX TEMPORE (REVISED) 1. In this matter I delivered judgment earlier today in which I concluded that a notice of motion brought by the second defendant, seeking an order that the default judgment entered against him be set aside, should be dismissed: Crawford Giles & Associates Pty Ltd v Spencer Grove Estate Pty Ltd and James Edward Spencer 2015 NSWSC 1396. 2. The circumstances giving rise to the application are set out in full in my judgment. The principal reasons leading to my conclusion that the motion should be dismissed commence at [36]. In short, I concluded that the evidence did not establish a good defence on the merits. I also found that there was unexplained delay by the second defendant in bringing the present application. I also observed that aspects of the second defendant's evidence left me with considerable disquiet as to its general veracity and reliability. 3. There is no doubt that in those circumstances, costs ought follow the event. Pursuant to r. 42.2 of the Uniform Civil Procedure Rules (the Rules"), unless the Court otherwise orders, or unless the Rules otherwise provide, costs are to be assessed on the ordinary basis. However, an application has been made on behalf of the plaintiff that I should order that the costs be paid by the defendant on an indemnity basis, pursuant to r. 42.5 of the Rules. 4. In support of that application counsel for the plaintiff has firstly submitted that on a proper view of the matter there were no reasonable prospects of success in bringing the motion. Secondly, counsel has relied upon the findings that I made (to which I previously referred) which caused me to conclude that the second defendant's motion should be dismissed. All of these factors were said to support the order sought. 5. The circumstances in which an order can be made for indemnity costs are not fixed. Examples of situations in which such orders have been made include circumstances where a party has misled the court, or where a party has maintained proceedings that they should have known had no real prospects of success. Indemnity costs have also been adjudged as appropriate where proceedings have been maintained for an ulterior purpose, or where the conduct of the proceedings has caused unreasonable delay and expense. All of these are simply examples of circumstances in which orders for indemnity costs have been determined to be appropriate. They do not, in any way, constitute an exhaustive list of those circumstances. 6. Taking the circumstances of the present case as a whole, I am not persuaded that an order for indemnity costs is appropriate. The mere fact that I have concluded that the second defendant's application should be refused does not, of itself, justify the making of such an order. The second defendant appeared in these proceedings unrepresented. I am not prepared, on the evidence before me, to reach a conclusion that he persisted with the motion in circumstances where he knew that it had no reasonable prospects of success. 7. I have made reference in the course of my principal judgment to the fact that the second defendant was unable to explain the delay which had been occasioned in bringing the present motion. However whilst the delay was significant in terms of the application it is not, when viewed as a whole, of such a magnitude as would justify an order for indemnity costs. 8. I should also add that the second defendant, as he indicated at the conclusion of the hearing would be the case, has not attended Court today. Were I otherwise minded to make an order for indemnity costs I would have further adjourned the matter in order to give the second defendant a proper opportunity to address me in relation to that issue. However, in the circumstances, and given the view that I have reached, that is not necessary. There is no reason why costs ought not follow the event, but I am not persuaded that the costs should be payable on anything other than the ordinary basis. 9. For those reasons, the application made on behalf of the plaintiff for an order for indemnity costs is refused. The second defendant is to pay the plaintiff's costs as agreed or assessed.