Younger v Westpac Banking Corporation [2016] NSWSC 401

Supreme Court New South Wales

Medium Neutral Citation: Younger v Westpac Banking Corporation [2016] NSWSC 401 Hearing dates: 7 April 2016 Date of orders: 07 April 2016 Decision date: 07 April 2016 Jurisdiction: Common Law Before: Garling J Decision: (1) Order the defendant to pay the plaintiff's costs of the notice of motion filed 31 March 2016. (2) Order that the costs thrown away by reason of the vacation of the final hearing date of 11 April 2016 be the plaintiff's costs in the cause. (3) Adjourn the matter generally for directions to 13 May 2016 and for the hearing of any notice of motion. (4) Grant the parties liberty to restore on one day's notice. Catchwords: COSTS – Notice of Motion seeking order for costs of an earlier Notice of Motion and costs thrown away by reason of the vacation of the hearing date – whether costs should follow the event – no point of general principle Legislation Cited: Not Applicable 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 SC / A M Edwards (P1) E Homes (D1, D2)

Solicitors: Gillis Delaney (P) Allens (D1, D2) File Number(s): 2014/335469 Publication restriction: Not Applicable

EX TEMPORE Judgment

Background 1. In July 2015, the final hearing of the plaintiff's claim including the identified common issues was fixed for 11 April 2016 for a period of five days. 2. A series of interlocutory proceedings then took place over many months. Those interlocutory proceedings were against the background that the parties had been directed in July 2015 to address any issue of discovery by conferring and agreeing upon categories of documents that were appropriate to be discovered. 3. On 26 February 2016, the Court ruled on contested argument as to what issues were likely to be common from the group members' perspective in any hearing of the plaintiff's case. At the conclusion of those proceedings, counsel for the parties were directed to prepare short minutes to reflect the Court's orders and address any remaining question of discovery to be had between the parties. 4. On 4 March 2016, consequent upon the Court's ruling on the issues which were likely to be common, the Court made orders by consent identifying those issues to be determined. As well, with the exception of two categories which were determined by argument, the Court made orders for discovery to take place in time to enable the final hearing to occur on 11 April 2016. The timing of the provision of that discovery was agreed to by the parties. 5. The parties were given liberty to apply to the Court to vary orders on one day's notice. The defendant made no application to vary the discovery obligations.