Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Al Maha Pty Ltd v Coplin (No 2) [2018] NSWCA 104 Hearing dates: On the papers Decision date: 17 May 2018 Before: Macfarlan JA; Meagher JA; Gleeson JA Decision: 1. Dismiss Mr Coplin's notice of motion filed on 21 December 2017. 2. Order Mr Coplin to pay the costs of Al Maha and PropertyFox of that motion. Catchwords: COSTS – party/party – general rule that costs follow the event – where primary judge upheld claims against one defendant, dismissed claims against other defendant and awarded costs against both defendants – where appellate court allowed appeal by unsuccessful defendant joining successful defendant as a respondent and seeking order dismissing statement of claim with costs – whether appellate court has power to order plaintiff to pay costs at first instance and on appeal of defendant successful at first instance – whether that power should not be exercised – no question of principle Legislation Cited: Civil Procedure Act 2005 (NSW), s 98 Supreme Court Act 1970 (NSW), s 75A(10) Uniform Civil Procedure Rules 2005 (NSW), r 42.1 Cases Cited: John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19 Category: Costs Parties: Al Maha Pty Ltd (Appellant) Iraklis Gary Coplin (First Respondent) PropertyFox Pty Ltd (Second Respondent) Representation: Counsel: TM Faulkner SC (Appellant) M Green SC and B Oliak (First Respondent) Solicitors: HWL Ebsworth Lawyers (Appellant) E Berman & Co (First Respondent) Jemmeson & Fisher (Second Respondent) File Number(s): 2017/12148 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Equity Division Citation: [2016] NSWSC 1745 Date of Decision: 16 December 2016 Before: Lindsay J File Number(s): 2015/143602 [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. THE COURT: The Court delivered judgment in this appeal on 11 December 2017: Al Maha Pty Ltd v Coplin [2018] NSWCA 318. The following orders were made: 1. Allow the appeal. 2. Set aside the declarations and orders numbered 1 to 7 made on 16 December 2016 and in lieu thereof order that the Statement of Claim be dismissed with costs. 3. First respondent pay the costs of the appellant and second respondent of the appeal. 1. The declarations and orders numbered 1 to 7 made by the primary judge included: 7. Order that the defendants pay the plaintiff's costs of the proceedings 1. Order 2 made by this Court required Mr Coplin, the unsuccessful plaintiff in relation to all of his claims against Al Maha and PropertyFox, to pay those defendants' costs of the proceedings at first instance. 2. By his notice of motion filed on 21 December 2017, Mr Coplin seeks to vary orders 2 and 3 made by this Court to the following: Order 2: Set aside the declarations and orders numbered 1 to 7 made on 16 December 2016 and in lieu thereof order that: 1. The Statement of Claim be dismissed with the Plaintiff to pay the costs of the First Defendant. 2. The Second Defendant to pay the costs of the Plaintiff. … Order 3 First respondent pay the costs of the appellant of the appeal. 1. The effect of the proposed variation of order 2 is that PropertyFox would pay Mr Coplin's costs of the proceedings at first instance, notwithstanding that the latter was wholly unsuccessful. The argument in support of that somewhat surprising outcome fixes upon the fact that there was no appeal by PropertyFox from the costs order in the proceedings below. Rather, Al Maha joined PropertyFox as second respondent in its appeal, which sought orders that the Statement of Claim be dismissed with costs and that Mr Coplin pay its and PropertyFox's costs of the appeal. PropertyFox in turn eventually filed an appearance by which it submitted "to the making of all orders sought" save as to the costs of the appeal. 2. In support of its application to vary the costs order in relation to the proceedings below, Mr Coplin makes the following arguments, which are addressed in turn. 3. First, he submits that the issue of PropertyFox's costs as first instance was not "properly brought before [this] Court", which accordingly lacked power in the appeal to make any order in respect of those costs. However, on the hearing of the appeal, the Court had power to "give any judgment, make any order or give any direction which ought to have been given or made or which the nature of the case requires": Supreme Court Act 1970 (NSW), s 75A(10). And the Supreme Court had power to determine "by whom, to whom and to what extent costs are to be paid": Civil Procedure Act 2005 (NSW), s 98. Therefore, this Court had power to make the order sought, and that order was sought in proceedings to which PropertyFox was properly joined as a party: John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19 at [131]. 4. Secondly, it is said that Al Maha was required to show that the orders sought in relation to the costs of the proceedings below "were appropriate". But Al Maha did so by its submission that Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 42.1 required that costs "follow the event" unless there was good reason to order otherwise. The relevant event was the dismissal of the Statement of Claim. 5. Thirdly, it is submitted that none of the relief sought by Al Maha was directed to the order sought in relation to PropertyFox's costs. It is correct that no ground of appeal asserted any error in awarding those costs against PropertyFox in circumstances where none of the claims against it had been made out. That order necessarily treated Al Maha and PropertyFox as being in the same interest and, for that reason, collectively the unsuccessful parties. Be that as it may, the grounds of appeal, if successful, required an order that the Statement of Claim be dismissed. That event displaced the basis upon which costs were ordered in the proceedings below, including against PropertyFox. Mr Coplin does not suggest that in the face of that outcome the appropriate order was anything other than that he pay the costs of both defendants in those proceedings. Nor could he. 6. Fourthly, Mr Coplin submits that he was not given an opportunity to be heard on this question as to costs. That is not correct. He addressed that issue in his written submissions and Al Maha responded by reference to UCPR, r 42.1. The matter was not further addressed in Mr Coplin's written submissions in reply or in oral argument. 7. Fifthly, it is contended that the interests of justice require that the order made by this Court be varied because Mr Coplin may have appealed against the rejection of his case against PropertyFox for contraventions of Australian Consumer Law, ss 18, 21, 30 if PropertyFox (as distinct from Al Maha) had challenged the costs order. For one thing, it was plain, and Mr Coplin's written submissions recognised, that the costs order against PropertyFox was a subject of the appeal. Moreover, in circumstances where corresponding claims of contravention against Al Maha were abandoned in the argument before this Court, there is no basis for concluding that the foreshadowed course of action would have resulted in anything other than that further appeal being dismissed with costs. 8. Finally, Mr Coplin faintly suggested that he was entitled to infer from the fact of PropertyFox's submitting appearance that it was content for the costs order made by the primary judge to stand in any event. This argument ignores the terms of its appearance, which made clear that PropertyFox submitted to the making of the relevant orders as sought. 9. Accordingly, the application to vary this Court's order as to the costs below should be rejected. That order reflected the reality that Mr Coplin's claims against Al Maha and PropertyFox were wholly unsuccessful. 10. The application to vary the order as to the costs of the appeal also should be rejected. It was not unreasonable for Al Maha to join PropertyFox as a party to the appeal in circumstances where the primary judge had treated those parties as being in the same interest for the purpose of making the underlying costs order and where that order was challenged. In view of that claim for relief, PropertyFox was a necessary respondent to the appeal, notwithstanding that it stood to benefit from the success of the appeal. 11. In the result, Mr Coplin's notice of motion should be dismissed and he should be ordered to pay the costs of Al Maha and PropertyFox of that application. Both were joined as parties to the application. PropertyFox was directly affected by the orders sought and entitled to oppose them. As for Al Maha, the arguments in support of the variation included that it and PropertyFox acting together may have "manipulated" the manner in which Mr Coplin ran his case on appeal while limiting PropertyFox's exposure to any liability to Mr Coplin. In the face of that argument, which was not supported by any evidence or further elaborated, Al Maha was entitled to respond. 12. The Court's orders are as follows: 1. Dismiss Mr Coplin's notice of motion filed on 21 December 2017. 2. Order Mr Coplin to pay the costs of Al Maha and PropertyFox of that motion. ********** 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: 17 May 2018