Supreme Court New South Wales Medium Neutral Citation: Stanizzo v Fregnan [2019] NSWSC 907 Hearing dates: 15 July 2019 Decision date: 16 July 2019 Jurisdiction: Common Law Before: Adamson J Decision: (1) Dismiss the plaintiff's notice of motion filed on 20 December 2018. Catchwords: COSTS – meaning of words "costs in the cause" – when no further relief sought, whether there is a "cause" to determine result of earlier order – as no further orders sought, no warrant to convert previous order that the costs of an application be costs in the cause to an order that the costs be payable by the party which lost the initial application Legislation Cited: Legal Profession Uniform Law Application Act 2014 (NSW), s 86 Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 42.1 Cases Cited: Amalgamated Television Services Pty Ltd v Marsden [1999] NSWCA 313 Bechara t/as Bechara and Company v Bates [2016] NSWCA 294 Cachia v Hanes (1994) 179 CLR 403; [1994] HCA 14 Timbarra Protection Coalition Inc v Ross Mining Ltd [1999] NSWCA 335 Category: Costs Parties: Vincent Francis Stanizzo (Plaintiff) Karina Fregnan (Defendant) Representation: Counsel: M K Rollinson (Plaintiff) Defendant in person Solicitors: V F Stanizzo (Plaintiff) File Number(s): 2018/14418 Judgment 1. By summons filed on 15 January 2018 Vincent Stanizzo (the plaintiff) sought orders against Karina Fregnan (the defendant), including a declaration that the operation of certificates of determination of party/party costs issued on 8 November 2017 by the Manager, Costs Assessment was suspended by the operation of s 86 of the Legal Profession Uniform Law Application Act 2014 (NSW) by reason of an application for review filed by the plaintiff on 5 December 2017. The plaintiff also sought a stay of the enforcement of the judgment entered as a result of the filing of the certificates of determination and an order setting aside the garnishee order made on the defendant's application until other proceedings (referred to in more detail below) were finally disposed of. 2. The summons came before Latham J as Duty Judge on 8 March 2018. The plaintiff was represented by Mr Waterstreet and Mr Rollinson and the defendant was represented by Mr Kumar. Following the hearing, her Honour made orders in terms of paragraphs 1 to 4 of the summons, as well as a costs order, as follows: "1. A Declaration that the operation of the Certificates of Determination of Party/ Party Costs issued on 8 November 2017 by the Manager, Costs Assessment in Assessment No. 2017/106414 ('the Determinations'), is suspended by operation of s. 86, Legal Profession Uniform Law Application Act 2014 (NSW), by virtue of the Application made and filed on 5 December 2017 by the Plaintiff for Review of the Determinations by a Costs Review Panel. A copy of such for Review of the Determinations by a Costs Review Panel. A copy of such Application being served on the Defendant Fregnan on 30 November 2017. 2. An order staying the enforcement of the judgment that has been recorded (on date not presently known to the Plaintiff) by the filing by the Defendant (Fregnan) of the Certificates of the Determinations, in proceedings No. 2017/00356450 in the Local Court at Sydney ('the Costs Judgment'). 3. An order setting aside the garnishee order that has been issued (on date not presently known to the Plaintiff) to the Commonwealth Bank of Australia, on the application of Fregnan, in respect of the Costs Judgment. 4. An order staying the enforcement of the Determinations and of the Costs Judgment and garnishee order until the proceedings between the parties in this Court, No. 2012/129649, Fregnan v Stanizzo, are finally disposed of ('Principal Proceedings'). 5. Costs on the Summons are to be costs in the cause." 1. It does not appear from the file that reasons for the orders were given by Latham J. 2. The remaining substantive orders sought in the summons were those in prayers 5 and 6 as follows: "5. An order that any costs that become due from the Plaintiff to Fregnan [the defendant] under the Determinations (subject to the pending review by the Panel) be set off against the costs due to the Plaintiff from Fregnan under the Certificate of Determination of Party/Party Costs issued in favour of the plaintiff (Stanizzo) on 16 March 2016 in Assessment No. 2015/313495. 6. An order that any such costs due from the Plaintiff to Fregnan be set off against costs that become due to the Plaintiff on the final disposal of the Principal Proceedings." 1. There are other proceedings in this Court between the plaintiff and the defendant. These are referred to in order (4) above and were commenced by Ms Fregnan against Mr Stanizzo in the Equity Division. They were heard by Harrison J, who reserved his decision and has not yet published reasons for decision as written submissions are still outstanding. 2. By notice of motion filed on 20 December 2019, the plaintiff sought the following order: "That the proceedings be listed for directions regarding the determination of matters not disposed of by the Orders made on 6 March 2018 on a date to be fixed." 1. The plaintiff also sought by the notice of motion an order that the enforcement of the Review Panel's certificates of determination be stayed. However, Mr Rollinson, who appeared for the plaintiff, confirmed that the plaintiff did not press his application for the stay. 2. Mr Rollinson submitted that, as no further orders were sought in the summons, I should order the defendant to pay the plaintiff's costs of the proceedings, including of the application made by Latham J on 6 March 2018. Mr Rollinson submitted that this was the appropriate order since the plaintiff was successful on 6 March 2018 and the costs ought follow the event pursuant to r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). He sought an order that the costs be paid forthwith on an indemnity basis. 3. The difficulty with this application is that, in effect, the plaintiff is seeking that I convert Latham J's order that the costs of the application on 6 March 2018 be costs in the cause, into an order that the defendant pay the plaintiff's costs of the application on 6 March 2018, although there has been nothing further of relevance ordered in these proceedings and, indeed, nothing further of relevance is sought. The orders made by Latham J were entered on 6 March 2018. Accordingly, UCPR, r 36.16(3A) does not apply. There is nothing to indicate that the order was made in error so as to make the slip rule in UCPR, r 36.17 applicable. The plaintiff was represented by two counsel before Latham J. 4. At best, the plaintiff is seeking to vary the costs order made on 6 March 2018 when the time for any such variation has passed; at worst, he is seeking to appeal against it in circumstances where I have no jurisdiction to set it aside or otherwise challenge it, that being a matter for the Court of Appeal. I am not satisfied that I have power to vary the costs order made by Latham J or that, if I did, it would be appropriate to do so having regard to its terms, the time of its making and the fact that the plaintiff was represented at the hearing which led to it: see Timbarra Protection Coalition Inc v Ross Mining Ltd [1999] NSWCA 335 at [3]-[4] (Spigelman CJ, Mason P and Meagher JA) and Amalgamated Television Services Pty Ltd v Marsden [1999] NSWCA 313 (Mason P, Meagher and Handley JJA). 5. I have been unable to discern why Latham J ordered that costs be costs in the cause since there is no record that her Honour gave reasons. However, there is no doubt as to the content of the orders. The narrative set out above reveals that the "cause", which Latham J appears to have regarded as the application for orders in prayers 5 and 6 of the summons, would be the determinant of which party ought pay the other's costs of the application for orders in terms of prayers 1 to 4 of the summons. The evident intent of the orders was that, if the plaintiff succeeded in obtaining the relief in prayers 5 and 6 of the summons, he would be entitled to the cost of 6 March 2018 and that if he were unsuccessful, the defendant would be entitled to her costs. As the "cause" has not been (and may never be) determined, there is no occasion for a determination that the plaintiff has been successful in the "cause" so as to make the defendant liable to pay the plaintiff's costs of the application before Latham J on 6 March 2018. 6. Accordingly, the plaintiff has failed to establish any entitlement to the costs order he seeks. It is, in these circumstances, unnecessary to address whether any costs payable ought be ordered to be payable on an indemnity basis or whether they ought be payable forthwith. 7. As the defendant has been successful, she would ordinarily be entitled to a costs order in her favour. However, as she appeared on her own behalf, it does not appear that she has incurred any legal costs. She is not entitled to professional costs for her time spent preparing for and appearing in the proceedings: Bechara t/as Bechara and Company v Bates [2016] NSWCA 294 at [22] (Beazley P, Meagher and Payne JJA), following Cachia v Hanes (1994) 179 CLR 403 at 410-411 (Mason CJ, Brennan, Deane, Dawson and McHugh JJ); [1994] HCA 14. For this reason, there would not appear, in the absence of argument on the question, to be any basis for making a costs order. Orders 1. For the reasons given above, I make the following order: 1. Dismiss the plaintiff's notice of motion filed on 20 December 2018. ********** 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: 16 July 2019