Novelly v Tamqia Pty Ltd (No 3) [2023] NSWSC 1235

Novelly v Tamqia Pty Ltd (No 3) [2023] NSWSC 1235

Because the contempt motion charged criminal contempts that were dismissed, and because the civil contempts found were not the case the defendants had to meet, it would be inconsistent and unjust to award Mr Novelly costs or make no order as to costs by reference to those uncharged civil contempts. The usual principle that costs follow the event therefore applied, subject only to excluding the defendants' costs of affidavits served but not read.

Jurisdiction
Australia
Judgment Date
18 October 2023
Procedural Posture
Costs Application Following Dismissal of Contempt Motion / Application on the Papers for a Different Costs Order
Outcome
The plaintiff's application for a different costs order was refused except that the defendants' recoverable costs exclude costs of affidavits served but not read; the plaintiff is to pay the defendants' costs including the costs argument.
Legal Topics
['party/party Costs' 'costs Follow the Event' 'misconduct Exception' 'criminal Contempt' 'civil Contempt' 'costs Discretion']
['costs' 'contempt'] ['party/party Costs' 'costs Follow the Event' 'misconduct Exception' 'criminal Contempt' 'civil Contempt' 'costs Discretion']

Case Brief

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Procedural Posture

Costs Application Following Dismissal of Contempt Motion / Application on the Papers for a Different Costs Order

Legal Issues

  1. 1 ["Whether the Court should depart from the costs order that the plaintiff pay the defendants' costs of the dismissed contempt motion." 'Whether findings that civil contempts were committed, although criminal contempts were not established, justified a percentage costs order in favour of the plaintiff or no order as to costs.' 'Whether the defendants should recover costs of affidavits served but not read at the contempt hearing.']

Ratio Decidendi

Because the contempt motion charged criminal contempts that were dismissed, and because the civil contempts found were not the case the defendants had to meet, it would be inconsistent and unjust to award Mr Novelly costs or make no order as to costs by reference to those uncharged civil contempts. The usual principle that costs follow the event therefore applied, subject only to excluding the defendants' costs of affidavits served but not read.

Court Disposition

The plaintiff's application for a different costs order was refused except that the defendants' recoverable costs exclude costs of affidavits served but not read; the plaintiff is to pay the defendants' costs including the costs argument.

Orders

  • ['Vary order 2 made on 8 September 2023 by adding ",including the defendants\' costs of the argument as to costs but excluding the defendants\' costs of and incidental to the preparation and service of the affidavits of the second defendant and Mr Vedat".']