Supreme Court New South Wales Medium Neutral Citation: Younger v Westpac Banking Corporation [2016] NSWSC 321 Hearing dates: 29 February 2016 Date of orders: 29 February 2016 Decision date: 07 April 2016 Before: Garling J Decision: (1) Order 2 of the Notice of Motion dated 13 November 2015 is dismissed. (2) Plaintiff to pay the defendants' costs of the Notice of Motion with respect to Order 2. Catchwords: PROCEDURE – civil – notice of motion seeking variation of costs order – whether court should exercise discretion to vary costs order Legislation Cited: Civil Procedure Act 2005 Uniform Civil Procedure Rules Cases Cited: Not Applicable Texts Cited: Not Applicable Category: Procedural and other rulings Parties: Neil Younger (P1) Westpac Banking Corporation (D1) Asgard Wealth Solutions Ltd (D2) Representation: Counsel: D R Pritchard / A Younger (P) D B Studdy SC (D1, D2) Solicitors: Gillis Delaney Lawyers (P) Allens, Solicitors (D1, D2) File Number(s): 2014/335469 Publication restriction: Not Applicable Judgment 1. On 13 November 2015 the plaintiff, Mr Neil Younger, filed a Notice of Motion which sought, amongst others, this order: "2. Order 8 made on 19 June 2015 be set aside and in lieu thereof, it be ordered that the first defendant is to pay the costs of the First, Third and Fourth Plaintiffs on an indemnity basis up to 30 April 2015, as agreed or assessed, forthwith." 1. The defendants, which can conveniently be called "Westpac", opposed the order sought. 2. In the circumstances, I made orders on 29 February 2016 dismissing this aspect of the Notice of Motion and indicating that I would give reasons in due course. 3. These are those reasons. Background 1. In 2014, a representative preceding was commenced against Westpac by four plaintiffs. The essential claim made in the representative proceedings was that Westpac had wrongly failed to pay to a group of former employees of St George Bank Limited and Asgard Wealth Solutions Ltd a "Retention Incentive" sum. 2. Before any steps of substance were taken in the proceedings, the Court ordered that the proceedings be referred to mediation. 3. A number of the claims made by former employees were settled as a result of the mediation process. Included in those settlements were claims made by three plaintiffs in the proceedings. 4. In respect of their claims, on 30 April 2015, Westpac served Offers of Compromise which included the payment of a sum of money, and an offer to pay the plaintiff's costs "as agreed or assessed up to the time this Offer of Compromise is made". 5. On 19 June 2015, the Court heard an application for the approval of the settlement reached between those plaintiffs and Westpac. The application was made pursuant to s 174 of the Civil Procedure Act 2005. 6. On that day, the proposed Terms of Settlement, which had been agreed to by the parties, were approved by the Court. The Court made orders in each of the plaintiffs' cases that Westpac pay the party and party costs of each plaintiff as agreed or assessed. Plaintiff's Submissions 1. The plaintiff submits that the Court ought vacate the agreed and approved costs order, and now order that costs be paid on an indemnity basis by Westpac. 2. That contention is based upon the conduct of Westpac prior to the orders being sought, and since that time, in particular, to its failure to make proper concessions or admissions of facts. It is submitted that Westpac's conduct is such that it warrants the variation of the costs order. 3. The plaintiff accepts that the range of factual matters upon which it relies to ground the application were within the knowledge of either the three plaintiffs, or their solicitor, prior to the Court being asked to approve the agreed terms of settlement. Defendant's Submissions 1. The defendant submits that the remaining plaintiff has no standing to seek the varied order, because it does not affect him personally, and the three plaintiffs whose cases have been resolved are not applicants for the revised order. 2. The defendant also submits that there is no lawful basis in the Civil Procedure Act 2005, or the Uniform Civil Procedure Rules, for the Court to make such an order. 3. Finally, Westpac submits that in the exercise of its discretion the Court should not vary a consent order in circumstances where all of the relevant facts, matters and circumstances were known to the party or their solicitor prior to the agreement as to orders being reached and then made by the Court. Discernment 1. There is no need for me, on this short application, to address the difficult questions raised by Westpac as to whether the plaintiff has standing to bring this application, and whether the Court has a discretion to vary the orders which have been entered. It can be assumed, without decision, that the Court has the power to make the order sought on the application of the plaintiff. 2. Upon the basis of that assumption, the Court is exercising a judicial discretion in considering whether to vary the orders that it made in June 2015. 3. I am not prepared to exercise that discretion. The simple position is that the orders were made by consent, between knowledgeable and legally represented parties in the course of proceedings where it was in the parties' respective interests to resolve the proceedings by settlement. 4. Had the plaintiffs wished to draw the Court's attention to the conduct of Westpac, which is now relied upon as the basis for the variation of the decision, then they were in a position so to do in June 2015. They did not do so. No doubt they had their reasons for not raising it at that time. Whatever those reasons may be, it is clear that, agreement having been reached, the plaintiffs and Westpac joined in an application to the Court for approval. 5. I cannot see any basis now to revisit those orders. This is not suggested to be a matter where a mistake as to fact has occurred. It is not suggested to be a matter in which unfair tactics or undue pressure was applied by the defendants to the plaintiff to enter into the agreement. On the contrary, each plaintiff was fully advised by knowledgeable and competent lawyers as to their individual position. 6. No basis of substance is advanced now which could impact upon the decision which was made. Orders 1. The Court orders: 1. Order 2 of the Notice of Motion dated 13 November 2015 is dismissed. 2. Plaintiff to pay the defendants' costs of the Notice of Motion with respect to Order 2. ********** 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 April 2016