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

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

The usual rule that costs follow the event applied separately to each motion. The plaintiffs failed on the contempt motion and therefore had to pay the first and second defendants' costs of that motion. The first defendant's abuse of process motion was a separate application, not merely an issue within its defence to the contempt motion, and the plaintiffs incurred additional costs in successfully defending it; therefore the first defendant had to pay those additional costs. Because the motions were interlocutory, discrete and separately identifiable, their costs were ordered to be assessed and payable forthwith.

Jurisdiction
Australia
Judgment Date
05 December 2019
Procedural Posture
Costs Determination in Equity Technology and Construction List Concerning Criminal Contempt Motion and Abuse of Process Motion / On the Papers After Principal Judgment
Outcome
Plaintiffs' contempt motion dismissed as against the first defendant; second defendant found not guilty of criminal contempt and charges dismissed; first defendant's abuse of process motion dismissed; ordinary costs ordered according to success on each motion, assessed and payable forthwith.
Legal Topics
['party/party Costs' 'costs Follow the Event' 'mixed Outcome in Proceedings' 'criminal Contempt Charges' 'abuse of Process Motion' 'costs Assessed and Payable Forthwith']
['costs' 'civil Procedure' 'contempt'] ['party/party Costs' 'costs Follow the Event' 'mixed Outcome in Proceedings' 'criminal Contempt Charges' 'abuse of Process Motion' 'costs Assessed and Payable Forthwith']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Costs Determination in Equity Technology and Construction List Concerning Criminal Contempt Motion and Abuse of Process Motion / On the Papers After Principal Judgment

Legal Issues

  1. 1 ["What costs orders should be made where the plaintiffs' contempt motion and the first defendant's abuse of process motion both failed." "Whether the first defendant's unsuccessful abuse of process motion should be treated as part of its successful defence to the contempt motion or as a separate application attracting separate costs." 'Whether the second defendant should receive its costs of the contempt motion notwithstanding a finding that it breached an undertaking.' 'Whether the costs of the contempt and abuse of process motions should be assessed and payable forthwith.']

Ratio Decidendi

The usual rule that costs follow the event applied separately to each motion. The plaintiffs failed on the contempt motion and therefore had to pay the first and second defendants' costs of that motion. The first defendant's abuse of process motion was a separate application, not merely an issue within its defence to the contempt motion, and the plaintiffs incurred additional costs in successfully defending it; therefore the first defendant had to pay those additional costs. Because the motions were interlocutory, discrete and separately identifiable, their costs were ordered to be assessed and payable forthwith.

Court Disposition

Plaintiffs' contempt motion dismissed as against the first defendant; second defendant found not guilty of criminal contempt and charges dismissed; first defendant's abuse of process motion dismissed; ordinary costs ordered according to success on each motion, assessed and payable forthwith.

Orders

  • ["In relation to the plaintiff's notice of motion dated 3 September 2019 (contempt motion): 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." "In relation to the plaintiff's notice of motion dated 3...