Moubarak v Le (No. 2) [2019] NSWDC 170

Moubarak v Le (No. 2) [2019] NSWDC 170

The Plaintiff was not to be entirely deprived of costs because the Defendants denied liability for a substantial period, the damages were not nominal, and commencement and continuation in the District Court was warranted. However, the Defendants succeeded on separable issues concerning future loss of earning capacity and future care and assistance, so the ordinary costs order should be varied to exclude the Plaintiff's costs referable only to establishing those claims. Because the Defendants succeeded only in part on the costs application, the Plaintiff was ordered to pay 50% of the Defendants' costs of the application.

Jurisdiction
Australia
Judgment Date
10 May 2019
Procedural Posture
Civil Costs Application Following Motor Accident Personal Injury Proceedings / On the Papers Application by the Defendants to Vary the Costs Order Made After Judgment
Outcome
Defendants' application allowed in part; costs order varied by apportionment.
Legal Topics
['costs Following the Event' 'proportional Costs Orders' 'separable Issues' 'district Court and Local Court Forum for Costs Purposes' 'small Monetary Judgment']
['civil Procedure' 'costs' 'motor Accidents' 'personal Injury'] ['costs Following the Event' 'proportional Costs Orders' 'separable Issues' 'district Court and Local Court Forum for Costs Purposes' 'small Monetary Judgment']

Case Brief

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Procedural Posture

Civil Costs Application Following Motor Accident Personal Injury Proceedings / On the Papers Application by the Defendants to Vary the Costs Order Made After Judgment

Legal Issues

  1. 1 ["Whether the costs order requiring the Defendants to pay the Plaintiff's costs should be varied after the Plaintiff recovered $6,640." "Whether the Defendants' success in defeating claims for future loss of earning capacity and future care and assistance justified departure from costs following the event." 'Whether commencement and continuation of the proceedings in the District Court rather than the Local Court was warranted under r 42.35 of the UCPR.' 'Whether the small amount of the judgment warranted depriving the Plaintiff of costs or making a proportional costs order.']

Ratio Decidendi

The Plaintiff was not to be entirely deprived of costs because the Defendants denied liability for a substantial period, the damages were not nominal, and commencement and continuation in the District Court was warranted. However, the Defendants succeeded on separable issues concerning future loss of earning capacity and future care and assistance, so the ordinary costs order should be varied to exclude the Plaintiff's costs referable only to establishing those claims. Because the Defendants succeeded only in part on the costs application, the Plaintiff was ordered to pay 50% of the Defendants' costs of the application.

Court Disposition

Defendants' application allowed in part; costs order varied by apportionment.

Orders

  • ["Subject to order 2 of these Orders, Order 2 made on 15 April 2019 is varied, and is substituted by an order that the Defendants pay the Plaintiff's costs of the proceeding save for his costs referable only to establishing claims for future loss of earning capacity and future care and assistance (respectively)."...