Nichols Constructions Pty Limited v Elphick (No 2) [2015] NSWSC 1822

Supreme Court New South Wales

Medium Neutral Citation: Nichols Constructions Pty Limited v Elphick (No 2) [2015] NSWSC 1822 Hearing dates: 27 November 2015 Date of orders: 27 November 2015 Decision date: 27 November 2015 Jurisdiction: Common Law Before: McCallum J Decision: Costs of the application is plaintiff's costs in the cause Category: Costs Parties: Nichols Constructions Pty Limited (plantiff) Vickie Maree Elphick (defendant) Representation: Counsel: D Macfarlane (plaintiff) M Youssef (defendant)

Solicitors: Wilson & Co Lawyers (plaintiff) HWL Ebsworth Lawyers (defendant) File Number(s): 2014/333687 Publication restriction: None

Judgment 1. HER HONOUR: On 23 November 2015 I determined an application by the plaintiff in these proceedings for an order that certain issues in the proceedings be decided separately from, and after, all issues in the proceedings. The application was successful and on that basis the plaintiff now seeks its costs. Mr Youseff, who appears for the defendant, has argued that although the plaintiff was successful it was in the circumstance that the order sought was in effect in the nature of an indulgence. Without accepting that specific characterisation, I would accept that what was sought was an order outside the usual procedural course of hearing all issues in the proceedings. And, further, that the application was not without complexity as I think is revealed in my published reasons. 2. In all the circumstances, in my view, the fair outcome of the costs is that the costs of the application be the plaintiff's costs in the cause.