Renshaw v New South Wales Lotteries Corporation Pty Ltd

1. [1]

   HIS HONOUR: On 3 November 2016, Mr David Renshaw filed a statement of claim against New South Wales Lotteries Corporation Pty Ltd (“the first defendant”) and the State of New South Wales (“the second defendant”) (collectively, “the defendants”) claiming for one of three first division prizes from an Oz Lotto Draw 188 drawn on 23 September 1997 (“Draw 188”). The prize was unclaimed.

2. [2]

   Mr Renshaw claimed that he was the prize winner who had not received his prize. The statement of claim was amended twice, the last of which was, at the time the proceedings were before the Court as presently constituted, a second amended statement of claim filed 6 September 2017 (“the second ASOC”).

3. [3]

   Mr Renshaw’s claim was resisted by the defendants. The defendants initially filed separate defences but later jointly filed a defence to the first amended statement of claim (“the amended defence”).

4. [4]

   On 19 April 2017, the defendants also filed a notice of motion to strike out the first amended statement of claim (“the first notice of motion”). The first notice of motion was amended twice.

5. [5]

   The defendants ultimately pursued a further amended notice of motion filed on 5 December 2017 (“the motion”).

6. [6]

   On 14 December 2018, the Court gave judgment in relation to the motion: Renshaw v New South Wales Lotteries Corporation Pty Ltd [2018] NSWSC 1954 (“Renshaw No 1”).

7. [7]

   In Renshaw No 1, the Court reached the following conclusions at [231]-[234]:

8. [8]

   The Court made the following directions (at [235]):

9. [9]

   On 20 December 2018, the following orders were executed under seal in Chambers:

10. [10]

    The defendants filed written submissions on 15 January 2019 in response to those orders. The defendants seek orders that:

    1. (1)

       the plaintiff pay their costs of and incidental to the motion as agreed or assessed, including the costs of the affidavits of Mr Stuart McNamara sworn 17 October 2017 and 17 January 2018; and

    2. (2)

       the plaintiff pay their costs thrown away arising from any further amended statement of claim.

11. [11]

    Their submissions, in support of that application for costs, were as follows:

12. [12]

    The plaintiff filed written submissions on 30 January 2019, which submissions, in some respects, were not relevant or responsive to the defendants’ application for costs (repeating, in part, arguments advanced with respect to the motion). In summary, the plaintiff opposed the application brought by the defendants and contended that it should be dismissed. The plaintiff advanced the following submissions:

13. [13]

    No party sought an oral hearing as to costs.

Relevant Legislation

1. [14]

   The general rule as to costs is set out in s 98 of the Civil Procedure Act 2005 (NSW) and Pt 42 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), namely, that costs follow the event.

2. [15]

   Part 42 of the UCPR sets out the rules with respect to costs. Rule 42.1 is extracted below:

3. [16]

   Specifically as to interlocutory proceedings, r 42.7 provides:

General Principles

1. [17]

   As to the principles applicable in that respect I refer to my judgment in Moseley v AB (No 2) [2017] NSWSC 1812 at [65]-[79], extracted below:

Consideration

1. [18]

   The defendants are correct to submit that they were substantially successful on the motion and a substantial proportion of the evidence in the matter concerned an important question on the contractual claim and whether the plaintiff was able to extend time by reason of any disability (and the Court ultimately decided in favour of the defendants with respect to those issues).

2. [19]

   The evidentiary costs were substantially directed by the defendants’ at matters on which succeeded, including the affidavit of Mr McNamara of 17 October 2017 and 17 January 2018, which dealt with the process of purchasing and recording ticket entries, the need to ensure the confidentiality and whether there was a record of any winning ticket on the date and time period that the plaintiff claimed to have purchased a winning ticket. They responded to the plaintiff’s affidavits insofar as they asserted the availability of records to prove his claim. I also accept the submission of the defendants that, although not read on the motion, the defendants’ affidavits were necessary in all the circumstances for those purposes and because of the plaintiff’s various notices to produce seeking records including the winning ticket itself.

3. [20]

   I also accept submissions that costs were incurred as a result of the plaintiff reconstituting his claim, a hearing date being abandoned and the need for various directions hearings arising from the plaintiff’s conduct of the proceedings.

4. [21]

   However, the defendants were unsuccessful in respect of the plaintiff’s claims under the Fair Trading Act 1987 (NSW) and the Trade Practices Act 1974 (Cth).

5. [22]

   It is true, as the defendants submitted, that these claims are subject to a limitation defence and there appeared to be an absence of pleading in that respect. Nonetheless, the judgment of the Court, with respect to those claims, was as follows in Renshaw No 1 (at [222]):

6. [23]

   The culmination of those considerations and one which will do justice to the parties is an award apportioning costs having regard to the lack of success, in small part, by the defendants. The defendant shall have 80% of their costs of and incidental to the motion, including the costs of the affidavits of Mr McNamara.

7. [24]

   As to the costs of any amended claim, the defendants filed a defence to the first amended statement of claim. This included defences to the claims in contract, negligence, trust and restitution. A new defence will be required to be filed that pleads only to the misleading or deceptive conduct claim. It is appropriate that a party seeking to or required to amend pays the costs thrown away by the other party arising from such amendment.

Direction

1. [25]

   The defendants shall bring in short minutes of order reflecting this judgment within 7 days of the publication of this judgment.