Cohen v Double Bay Bowling Club (No 2) [2019] NSWSC 1732

Supreme Court New South Wales

Medium Neutral Citation: Cohen v Double Bay Bowling Club (No 2) [2019] NSWSC 1732 Hearing dates: On the papers Date of orders: 05 December 2019 Decision date: 05 December 2019 Jurisdiction: Equity - Technology and Construction List Before: Henry J Decision: (1) In relation to the plaintiff's notice of motion dated 3 September 2019 (contempt motion): (a) dismiss the charges against the first defendant with the plaintiffs to pay the first defendant's costs on an ordinary basis to be assessed and payable forthwith; and (b) find the second defendant not guilty of committing criminal contempt as charged and otherwise dismiss the charges against the second defendant with the plaintiffs to pay the second defendant's costs on an ordinary basis to be assessed and payable forthwith. (2) Dismiss the first defendant's notice of motion dated 21 September 2019 with the first defendant to pay the plaintiff's costs in relation to the motion which are additional to those incurred by the plaintiffs in relation to their contempt motion on an ordinary basis to be assessed and payable forthwith. Catchwords: COSTS – party/party – general rule that costs follow the event – where mixed outcome in proceedings – plaintiffs' contempt motion and first defendant's abuse of process motion both unsuccessful – whether abuse of process motion should be treated as part of a successful defence to contempt motion – where criminal contempt charges against second defendant not upheld but finding of breach of undertaking – held that the general rule should apply on each motion – costs assessed and payable forthwith pursuant to Practice Note SC Eq 3 Legislation Cited: Civil Procedure Act 2005 (NSW), s 98 Practice Note SC Eq 3 Supreme Court Rules 1970 (NSW) Part 55, r 6 Uniform Civil Procedure Rules 2005 (NSW), r 42.1, 42.7 Cases Cited: Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 Cohen v Double Bay Bowling Club [2019] NSWSC 1625 Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Limited (2015) 256 CLR 375; [2015] HCA 21 Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 Elite Protective Service Pty Ltd v Salmon (No 2) [2007] NSWCA 373 G&S Engineering Services Pty Ltd v MACH Energy Australia Pty Ltd (No 2) [2019] NSWSC 463 Griffith v Australian Broadcasting Corporation [2011] NSWCA 145 James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 Kostov v YPOL Pty Limited (2018) 98 NSWLR 1002; [2018] NSWCA 306 Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service (No 2) [2011] NSWCA 171 McLaughlin v Dunwogan Manly Pty Limited [2010] NSWSC 306 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Category: Costs Parties: Gregory Clive Cohen (First Plaintiff) Mariela Sverdloff (Second Plaintiff)