O'Neill v Williams & anor (costs) [2007] NSWSC 51

O'Neill v Williams & anor (costs) [2007] NSWSC 51

Although the plaintiff obtained a lesser remedy than originally claimed, her success in establishing an equitable lifetime right of residence was substantial, arose from the same facts and principles as the larger proprietary claim, and did not cause severable additional costs; therefore the ordinary costs rule generally applied. However, the defendants should not bear the costs of reasonable applications and appearances required to progress the matter to trial because the plaintiff was not proactive and did little to cooperate, notwithstanding her health and frailty. No order should be pursued against the former solicitors because they had not been given notice and the case did not...

Jurisdiction
Australia
Judgment Date
12 February 2007
Procedural Posture
Costs in Equity Division Proceedings Concerning Equitable Relief / Costs Determined on Written Submissions After Substantive Judgment
Outcome
Plaintiff ordered to pay defendants' costs of specified applications and appearance to bring the matter to trial; defendants otherwise ordered to pay plaintiff's costs; costs orders set off and execution stayed until net amount ascertained or further order.
Legal Topics
['costs Following Partial Success' 'departure From Ordinary Costs Rule' 'costs Against Solicitors' 'delay and Non Compliance With Directions' 'set Off of Costs Orders']
['civil Procedure' 'costs' 'equity'] ['costs Following Partial Success' 'departure From Ordinary Costs Rule' 'costs Against Solicitors' 'delay and Non Compliance With Directions' 'set Off of Costs Orders']

Case Brief

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Procedural Posture

Costs in Equity Division Proceedings Concerning Equitable Relief / Costs Determined on Written Submissions After Substantive Judgment

Legal Issues

  1. 1 ["Whether the plaintiff's success on a lesser equitable right of residence, rather than the proprietary relief originally claimed, justified depriving her of costs or ordering her to pay the defendants' costs." "Whether costs should be ordered against the plaintiff's former solicitors under Civil Procedure Act 2005 (NSW), s 99." "Whether the plaintiff should pay the defendants' costs of applications and appearances required to bring the proceedings to trial because of her inaction and non-readiness." 'Whether costs orders in the proceedings should be set off.']

Ratio Decidendi

Although the plaintiff obtained a lesser remedy than originally claimed, her success in establishing an equitable lifetime right of residence was substantial, arose from the same facts and principles as the larger proprietary claim, and did not cause severable additional costs; therefore the ordinary costs rule generally applied. However, the defendants should not bear the costs of reasonable applications and appearances required to progress the matter to trial because the plaintiff was not proactive and did little to cooperate, notwithstanding her health and frailty. No order should be pursued against the former solicitors because they had not been given notice and the case did not...

Court Disposition

Plaintiff ordered to pay defendants' costs of specified applications and appearance to bring the matter to trial; defendants otherwise ordered to pay plaintiff's costs; costs orders set off and execution stayed until net amount ascertained or further order.

Orders

  • ["Order that the plaintiff pay the defendants' costs of and incidental to (1) the defendants' motion filed on 6 June 2005; (2) the appearance before Barrett J on 15 February 2006; and (3) the defendants' motion filed on 20 February 2006." "Order that save insofar as any other costs order makes provision, the...