Batterham v Goldberg (No. 2) [2023] NSWSC 1426

Batterham v Goldberg (No. 2) [2023] NSWSC 1426

The plaintiff's proceedings were found to be frivolous, vexatious and an abuse of process with no prospects of success, justifying an award of indemnity costs. A gross sum costs order is appropriate due to the straightforward nature of the proceedings and to avoid disproportionate cost assessment, set at $29,000. Repeated attempts to re-litigate the same subject matter justify an order restraining the plaintiff from commencing further related proceedings until payment of costs and with leave of the Court.

Parties
Plaintiff: James Batterham; First Defendant: Terrance Goldberg; Second Defendant: Armando Gardiman; Third Defendant: Thady Blundell
Jurisdiction
Australia
Judgment Date
21 November 2023
Procedural Posture
Procedural Ruling / Post Dismissal, Costs and Restraining Order Determination
Outcome
Costs order varied; indemnity costs fixed in gross sum; restraining order granted against plaintiff
Legal Topics
Costs, Abuse of Process, Vexatious Proceedings, Restraint Orders
Civil Procedure Costs Abuse of Process Vexatious Proceedings Restraint Orders

Case Brief

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Parties

James Batterham

Plaintiff

Terrance Goldberg

First Defendant

Armando Gardiman

Second Defendant

Thady Blundell

Third Defendant

Procedural Posture

Procedural Ruling / Post Dismissal, Costs and Restraining Order Determination

Legal Issues

  1. 1 Whether indemnity costs should be awarded against the plaintiff
  2. 2 Whether costs should be fixed as a gross sum
  3. 3 Whether the plaintiff should be restrained from commencing further proceedings against the defendants without leave of the Court and payment of costs

Ratio Decidendi

The plaintiff's proceedings were found to be frivolous, vexatious and an abuse of process with no prospects of success, justifying an award of indemnity costs. A gross sum costs order is appropriate due to the straightforward nature of the proceedings and to avoid disproportionate cost assessment, set at $29,000. Repeated attempts to re-litigate the same subject matter justify an order restraining the plaintiff from commencing further related proceedings until payment of costs and with leave of the Court.

Court Disposition

Costs order varied; indemnity costs fixed in gross sum; restraining order granted against plaintiff

Orders

  • The plaintiff is to pay the defendants' costs of the proceedings on an indemnity basis fixed in the specified gross sum of $29,000.00.
  • The plaintiff is restrained from commencing in any court or tribunal, any proceedings against any of the defendants, or the current partners, former partners from time to time of the partnership with the business name "Turner Freeman" and trading as Turner Freeman Solicitors, (other than by a claim in the nature of...