Old v Miniter (No 2) [2020] NSWDC 519

Old v Miniter (No 2) [2020] NSWDC 519

Although the defendant was the successful party in the substantive proceedings, both parties were equally responsible for egregious non-compliance with the Judicial Registrar's order requiring alternative dispute resolution by 30 September 2019 and for failing to bring that default to the Court's attention. Having regard to the compensatory nature of costs, the overriding purpose, the dictates of justice, and the substantial costs incurred after the default, it would be unjust to award the defendant all costs after 30 September 2019. The defendant's costs recovery was therefore limited to costs properly incurred up to that date, with each party bearing their own later costs as ordered.

Jurisdiction
Australia
Judgment Date
04 September 2020
Procedural Posture
Civil Professional Negligence Proceedings; Costs Determination / Post Judgment Costs Hearing After Substantive Judgment for the Defendant
Outcome
The defendant obtained costs on the ordinary basis only up to 30 September 2019; the defendant must bear his own costs incurred after that date, and the plaintiff must bear his own costs of the proceedings.
Legal Topics
['costs Discretion' 'costs Following the Event' 'alternative Dispute Resolution Non Compliance' 'overriding Purpose' 'offers of Compromise' 'ordinary Basis Costs']
['civil Procedure' 'costs' 'professional Negligence'] ['costs Discretion' 'costs Following the Event' 'alternative Dispute Resolution Non Compliance' 'overriding Purpose' 'offers of Compromise' 'ordinary Basis Costs']

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Procedural Posture

Civil Professional Negligence Proceedings; Costs Determination / Post Judgment Costs Hearing After Substantive Judgment for the Defendant

Legal Issues

  1. 1 ['What costs order should be made after the defendant succeeded in the substantive proceedings but both parties failed to comply with an order to pursue alternative dispute resolution by 30 September 2019.' "Whether the usual order that costs follow the event should be modified because of both parties' non-compliance with the Judicial Registrar's alternative dispute resolution order." "Whether the defendant's costs recovery should be limited to costs incurred up until 30 September 2019."]

Ratio Decidendi

Although the defendant was the successful party in the substantive proceedings, both parties were equally responsible for egregious non-compliance with the Judicial Registrar's order requiring alternative dispute resolution by 30 September 2019 and for failing to bring that default to the Court's attention. Having regard to the compensatory nature of costs, the overriding purpose, the dictates of justice, and the substantial costs incurred after the default, it would be unjust to award the defendant all costs after 30 September 2019. The defendant's costs recovery was therefore limited to costs properly incurred up to that date, with each party bearing their own later costs as ordered.

Court Disposition

The defendant obtained costs on the ordinary basis only up to 30 September 2019; the defendant must bear his own costs incurred after that date, and the plaintiff must bear his own costs of the proceedings.

Orders

  • ["The plaintiff is to pay the defendant's costs of the proceedings on the ordinary basis, but such costs liability should be limited to costs properly incurred by the defendant up until 30 September 2019 and not thereafter;" 'The defendant is to pay his own costs incurred in defending the proceedings after 30...