District Court New South Wales Medium Neutral Citation: White v Lachlan Shire Council (No 2) [2017] NSWDC 142 Hearing dates: 9 June 2017 Date of orders: 13 June 2017 Decision date: 13 June 2017 Jurisdiction: Civil Before: Judge Levy SC Decision: 1. Pursuant to s 98(3) of the Civil Procedure Act 2005, the plaintiff is ordered to pay the defendant's wasted costs incurred consequent upon the interlocutory listing on 31 March 2017; 2. The costs that are the subject of Order (1) above are assessed in the gross sum of $5500 including GST, and those costs are to be paid by the plaintiff to the defendant within 21 days of today's date; 3. For reasons of procedural fairness, the question of whether the plaintiff should be indemnified by any person for the costs that are the subject of orders (1) and (2) above, is deferred, and is reserved to be determined after the delivery of the separate final judgments on the liability and quantum issues in the proceedings; 4. The plaintiff is to pay the defendant's costs of the abandoned notice of motion filed on 26 May 2017, seeking summary judgment, such costs assessed in the sum of $3500, payable when the litigation concludes; 5. I make procedural orders and directions for the further conduct of the proceedings in accordance with the initialled short minutes filed in Court on 9 June 2017; 6. Liberty to apply on 7 days' notice if the plaintiff seeks to vary the time for payment identified in Order (2) above. Catchwords: COSTS – assessment of wasted costs additional to amount assessed on 2 June 2017 – further costs order relating to an abandoned notice of motion which sought summary judgment where motion was bound to fail Legislation Cited: Civil Liability Act 2002, s 5B, s 5D Civil Procedure Act 2005, s 98(3) Uniform Civil Procedure Rules 2005, r 13.1 Cases Cited: Ekes v Commonwealth Bank of Australia [2014] NSWCA 336 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 State of New South Wales v Williams [2014] NSWCA 177 White v Lachlan Shire Council (No 1) [2017] NSWDC 132 Category: Costs Parties: Gary White (Plaintiff) Lachlan Shire Council (Defendant) Representation: Counsel: Mr A Kaylinger (As agent for the plaintiff) Mr JT Gibson (Defendant) Solicitors: Herbert Weller (Plaintiff) Moray & Agnew (Defendant) File Number(s): 2015/76001 Publication restriction: None Judgment 1. These reasons deal with additional wasted costs to those previously considered and assessed: White v Lachlan Shire Council (No 1) [2017] NSWDC 132. These reasons also deal with the costs consequences of a notice of motion filed on behalf of the plaintiff on 26 May 2017, but now abandoned, by which, pursuant to the Uniform Civil Procedure Rules 2005, r 13.1, the plaintiff sought summary judgment against the defendant on the issue of liability. Application relating to additional wasted costs 1. On 2 June 2017, orders were made having the effect of requiring the plaintiff to pay the defendant's wasted costs assessed in the amount of $90,000 on a forthwith basis relating to a number of procedural matters that have occurred in these proceedings that resulted in the defendant incurring wasted costs: White v Lachlan Shire Council (No 1) [2017] NSWDC 132. 2. On 9 June 2017, on a mention of the matter, the defendant identified an additional amount of wasted costs relating to interlocutory issues listed for hearing on 31 March 2017, and which should have been included in the orders made on 2 June 2017, but which had been overlooked. The reason those costs were incurred was that the plaintiff was not ready to proceed on 31 March 2017 due to an incorrect understanding of the reason for the listing on that date. 3. The amount claimed for those costs is $7604.85 including GST. There is no dispute over whether the work claimed was necessarily carried out, or as to the rate charged for that work. 4. Pursuant to s 98(3) of the Civil Procedure Act 2005, the defendant now seeks to have those overlooked costs included in the effect of the previous wasted costs order made on 2 June 2017. 5. I am satisfied the additional source of wasted costs sought is properly claimed and allowable, and ought to have been included in the previous order made on 2 June 2017. I therefore take the same broad-brush approach that was identified and explained in my earlier decision: White v Lachlan Shire Council (No 1) [2017] NSWDC 132, at [36]-[30] and [45]. 6. Accordingly, I assess those additional costs claimed in the amount of $7604.85 in the discounted and rounded down sum of $5500, payable within 21 days unless otherwise ordered. Costs of abandoned notice of motion filed on 26 May 2017 1. On 26 May 2017, the solicitor for the plaintiff filed a notice of motion seeking summary judgment in favour of the plaintiff on the issue of liability: UCPR r 13.1. In support of that motion, the plaintiff relied upon the affidavit of his solicitor, Herbert Weller, sworn on 26 May 2017. 2. It was plain on the face of the material relied upon, that it could not possibly have satisfied the requirements of s 5B and s 5D of the Civil Liability Act 2002, and could not have been a basis for an order for summary judgment. 3. It is tolerably clear that the motion was retaliatory to the application by the defendant for a wasted costs order. 4. Having regard to the principles to be applied in determining whether summary judgment should be entered, it is sufficient to say that the motion had no reasonable prospects of success: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, at pp 129-130; State of New South Wales v Williams [2014] NSWCA 177, at [71]; Ekes v Commonwealth Bank of Australia [2014] NSWCA 336, at [88]. 5. The motion seeking summary judgment was listed for hearing on 9 June 2017. On 30 May 2017, the defendant's solicitor wrote to the solicitor for the plaintiff, in effect advising that the motion had no prospects of success, and flagged that on an anticipated failure of the motion, indemnity costs would be sought from 26 May 2017. 6. On 7 June 2017, the plaintiff's solicitor wrote to the defendant's solicitor advising the motion seeking summary judgment would be withdrawn, and the defendant now seeks its costs in relation to that withdrawn motion, but limited to work carried out to 7 June 2017, in the corrected amount of $4882.24, including GST, on the indemnity basis, payable forthwith. 7. On behalf of the plaintiff, Mr Kaylinger, appearing as agent for Mr Weller, submitted the defendant's costs of the abandoned motion should be paid on the ordinary basis, and not forthwith as claimed by the plaintiff. In reply, Mr Gibson, for the defendant, submitted that the costs claimed represented a discrete area of preparatory work that justified the same approach to these claimed costs as was taken in the earlier decision: White v Lachlan Shire Council (No 1) [2017] NSWDC 132. 8. I consider the costs of the abandoned motion for summary judgment do represent a discrete are of costs that permits a separate gross sum assessment on the material provided. I also consider that a similar broad-brush approach, discounted by 25 per cent, and rounded down, as referred to in paragraphs [6] and [7] above, be taken in relation to the assessment of those costs. 9. However, I do not agree that this component of the defendant's costs should be paid on the forthwith basis as claimed, notwithstanding that the plaintiff's motion was destined to fail. 10. When, as is the case here, a party incurs costs in litigation because of a misconceived step taken by the opposing side, those costs are generally assessed and compensated on the ordinary basis at the conclusion of the litigation, unless there are compelling circumstances that justify a departure from that approach, such as where, for example, beforehand an opponent warns of the adverse costs consequences of taking a proposed step that ultimately fails. In this instance, there was no communication along those lines. 11. In the circumstances, I consider that if this component of compensatory costs were awarded to the defendant on an indemnity basis, and payable forthwith, this would have an unwarranted punitive effect. On this particular aspect of costs, such an approach is therefore contraindicated. The position might have been different if, before the filing of the abandoned motion, the plaintiff had flagged that proposed course to the defendant, and the defendant had flagged to the plaintiff that if such a course was being contemplated, it should be recognised as being one that was destined to fail. However, there were no such preliminary exchanges. 12. Accordingly, for the above reasons, I therefore assess the defendant's costs of the plaintiff's abandoned motion for summary judgment in the discounted and rounded down sum of $3500, to be paid in the ordinary course, when the litigation concludes. Orders 1. I make the following orders: 1. Pursuant to s 98(3) of the Civil Procedure Act 2005, the plaintiff is ordered to pay the defendant's wasted costs incurred consequent upon the interlocutory listing on 31 March 2017; 2. The costs that are the subject of Order (1) above are assessed in the gross sum of $5500 including GST, and those costs are to be paid by the plaintiff to the defendant within 21 days of today's date; 3. For reasons of procedural fairness, the question of whether the plaintiff should be indemnified by any person for the costs that are the subject of orders (1) and (2) above, is deferred, and is reserved to be determined after the delivery of the separate final judgments on the liability and quantum issues in the proceedings; 4. The plaintiff is to pay the defendant's costs of the abandoned notice of motion filed on 26 May 2017, seeking summary judgment, such costs assessed in the sum of $3500, payable when the litigation concludes; 5. I make procedural orders and directions for the further conduct of the proceedings in accordance with the initialled short minutes filed in Court on 9 June 2017; 6. Liberty to apply on 7 days' notice if the plaintiff seeks to vary the time for payment identified in Order (2) above. ********** 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: 13 June 2017