Kiel v Buttelig [2015] NSWLC 32

Local Court New South Wales

Medium Neutral Citation: Kiel v Buttelig [2015] NSWLC 32 Hearing dates: 6 August 2015 Decision date: 10 September 2015 Jurisdiction: Civil Before: Keogh LCM Decision: The defendant's costs be paid by the plaintiff in the amount as agreed or assessed. Exceptional circumstances have not been established to warrant an order on an indemnity basis. Catchwords: CIVIL PROCEEDINGS – discontinuance – costs – ordinary rule that plaintiff is to pay defendant's costs unless court orders otherwise – ordinary rule not a fetter to general discretion to order costs - displacement of the ordinary rule - principles Legislation Cited: Civil Procedure Act 2005, s 98 Uniform Civil Procedure Rules 2005, r 42.19 Cases Cited: Fordyce v Fordham [2006] NSWCA 274 Foukkare v Angreb Pty Ltd [2006] NSWCA 335 Johnson v Clancy [2010] NSWSC 1301 Oshlack v Richmond River Council [1998] HCA 11 Category: Costs Parties: Julie Kiel (plaintiff) Diana Buttelig (first defendant) Bob Soo (second defendant) Representation: Solicitors: Mr M Jaku (for the plaintiff)

Counsel: Mr T Bland (for the defendants) File Number(s): 2013/379869

Judgment 1. This is a dispute about costs on the discontinuance of proceedings. The plaintiff seeks to discontinue the proceedings on the basis that each party bear their own costs. The defendants are of the view that the plaintiff should bear her own costs and additionally pay the defendants' costs. 2. The motion came before me on 6 August 2015. 3. Resolution of the matter is governed by section 98 of the Civil Procedure Act 2005 and rule 42.19 of the Uniform Civil Procedure Rules. 4. Section 98 is in these terms: Courts powers as to costs (1) Subject to rules of court and to this or any other Act: (a) costs are in the discretion of the court, and (b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and (c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis. (2) Subject to rules of court and to this or any other Act, a party to proceedings may not recover costs from any other party otherwise than pursuant to an order of the court. (3) An order as to costs may be made by the court at any stage of the proceedings or after the conclusion of the proceedings. (4) In particular, at any time before costs are referred for assessment, the court may make an order to the effect that the party to whom costs are to be paid is to be entitled to: (a) costs up to, or from, a specified stage of the proceedings, or (b) a specified proportion of the assessed costs, or (c) a specified gross sum instead of assessed costs, or (d) such proportion of the assessed costs as does not exceed a specified amount. (5) The powers of the court under this section apply in relation to a married woman, whether as party, tutor, relator or otherwise, and this section has effect in addition to, and despite anything in, the Married Persons (Equality of Status) Act 1996. (6) In this section, "costs" include: (a) the costs of the administration of any estate or trust, and (b) in the case of an appeal to the court, the costs of the proceedings giving rise to the appeal, and (c) in the case of proceedings transferred or removed into the court, the costs of the proceedings before they were transferred or removed. 1. Rule 42.19 is in these terms: 42.19 Proceedings discontinued (1) This rule applies to proceedings that are discontinued by the plaintiff, as referred to in rule 12.1. (2) Unless the court orders otherwise or the notice referred to in rule 12.1 (2) otherwise provides, the plaintiff must pay such of the defendant's costs as, at the date on which the notice of discontinuance was filed, had been incurred by the defendant in relation to each claim in respect of which the proceedings have been discontinued. (3) Despite subrule (2), the defendant's costs in an appeal to the District Court under section 91 of the Children and Young Persons (Care and Protection) Act 1998 are not payable by the plaintiff unless the court finds there are special circumstances to justify an order for their payment by the plaintiff.