Majak v Rose (No 7) [2017] NSWCA 276

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Majak v Rose (No 7) [2017] NSWCA 276 Hearing dates: On the papers Decision date: 24 October 2017 Before: Payne JA Decision: Costs of the motion be the respondent's costs in the cause. Catchwords: COSTS – no issue of principle Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 36.16, 42.1 Category: Costs Parties: Zofia Majak (Applicant) Alan Rose (Respondent) Representation: Solicitors: In Person (Applicant) R Byrnes (Respondent) File Number(s): 2017/00235558

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment 1. HIS HONOUR: By notice of motion filed on 13 October 2017, the applicant sought an order vacating the hearing date fixed for this matter, 27 October 2017. On 16 October 2017, this matter came before me in the referrals list. The notice of motion was dismissed on that day: Majak v Rose (No 6) [2017] NSWCA 262. As no order for costs had been sought or foreshadowed by the respondent to the motion, no order about costs was made. 2. On the afternoon of 16 October 2017, following publication of that judgment, an email was received from the respondent seeking that the matter be relisted for the purpose of making submissions about costs of the motion. 3. Rather than re-list the matter and incur additional costs, each party was invited to file written submissions about the question of costs of the motion. 4. On 17 October 2017, the respondent filed written submissions as to costs. On 24 October 2017, the applicant via e-mail stated that she had been sick and not able to prepare submissions. The applicant sought an extension to 31 October 2017 to file written submissions about costs of the motion. 5. While I am sympathetic to the applicant's suggested health difficulties, the hearing of this matter is fixed for 27 October 2017. It would be inappropriate to adjourn consideration of this costs question, concerning an unsuccessful motion to adjourn the principal case, until after the hearing of that principal case. 6. The respondent submitted that the applicant should be ordered to pay costs of the notice of motion dated 13 October 2017 on an ordinary basis. Under r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), the respondent submitted that costs should follow the event. 7. The respondent submitted there is nothing to suggest that the presumption that costs follow the event should be displaced in this matter and cited Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [69] per McHugh J.