Beaton v Firmin Arnold & Associates Pty Ltd [2019] NSWSC 432

Supreme Court New South Wales

Medium Neutral Citation: Beaton v Firmin Arnold & Associates Pty Ltd [2019] NSWSC 432 Hearing dates: 7 December 2018 Date of orders: 18 April 2019 Decision date: 18 April 2019 Jurisdiction: Equity Before: Robb J Decision: (1) Order the defendant to pay to the plaintiff the sum of $2,697.71, as the net amount of interest payable under s 100 of the Civil Procedure Act 2005 (NSW).

(2) Order the defendant to pay to the plaintiff her costs limited to her reasonable costs of filing the statement of claim and obtaining in her favour the judgment made in order 1.

(3) Otherwise dismiss the plaintiff's notice of motion filed on 3 July 2018.

(4) Order the plaintiff to pay the defendant's costs of the notice of motion filed on 3 July 2018, save for any amount that the defendant may be ordered to pay for the costs of the plaintiff as a result of order 2 hereof. Catchwords: COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion Legislation Cited: Civil Procedure Act 2005 (NSW), s 100 Category: Costs Parties: Anne Beaton (plaintiff) Firmin Arnold & Associates Pty Ltd (defendant) Representation: Counsel: A J McQuillen (plaintiff)

Solicitors: Jenman Lawyers (plaintiff) Self-represented (defendant) File Number(s): 2018/85067

Judgment 1. The plaintiff, Anne Beaton, commenced these proceedings by statement of claim filed on 16 March 2018 against the defendant, Firmin Arnold & Associates Pty Ltd, which is a firm that deals in collecting unclaimed funds. The statement of claim sought an order that the defendant pay the plaintiff the sum of $62,071.77 for a debt owing to her, as well as interest, costs and an account. 2. The defendant had previously paid the plaintiff $15,000 on 2 March 2018. On 12 April 2018, after the statement of claim was filed, the defendant paid a further $47,171.77 to the plaintiff. The total amount paid was therefore $62,171.77. 3. The plaintiff brings a notice of motion filed on 3 July 2018 that seeks the following orders: 1. Leave be given to the Plaintiff to enter judgment for the amount of $62,171.71 or such other sum as may be found due to the Plaintiff after an account. 2. An account of administration in common form pursuant to UCPR 46. 3. Alternatively, an account of administration on the basis of wilful default pursuant to UCPR 46.4. 4. Directions for the taking of an account pursuant to UCPR 46.4. 5. Such further or other order as to the Court seems fit. 6. Costs. 1. The plaintiff's notice of motion came before the Court in the Applications List for hearing on 7 December 2018. The plaintiff was represented by counsel. For reasons that do not need to be related, it was necessary for the Court to hear submissions from the defendant by its director, Ms Penelope Elizabeth Arnold O'Connell, by telephone. 2. Because of the difficulty in conducting the hearing, as the defendant was not represented by somebody present in the courtroom, it was necessary to give the defendant an opportunity to deliver some additional submissions in writing in order to respond to written submissions provided to the Court by the plaintiff. 3. After the defendant provided the additional submissions, further submissions were provided in response by the plaintiff, although the Court had not given the plaintiff leave to deliver any further submissions. 4. The plaintiff's notice of motion, in par 6, seeks "Costs" against the defendant. The plaintiff's submissions show that the plaintiff seeks indemnity costs and a fixed sum costs order. The claim for indemnity costs is made largely on the basis of supposed Calderbank offers that the plaintiff served on the defendant in order to achieve a compromise on the amount of costs payable by the defendant to the plaintiff.