Warren v Maclean-Lower Clarence Services Club Ltd (No 2)

Yesterday, I made orders in favour of the plaintiff, Mr Warren (see Warren v Maclean-Lower Clarence Services Club Ltd [2014] NSWSC 1374). He also sought an order for costs under s 98 of the Civil Procedure Act 2005 (NSW), assessed at what was submitted to be a conservative figure of $20,000.

There is no question as to the Court's power to make such an order. In the circumstances outlined in the judgment delivered yesterday, which it is unnecessary to repeat, I am well satisfied that justice demands that the order sought be made.

There can be no question that the costs so ordered reflect an extremely conservative figure which is not reflective of the amount likely to be received by Mr Warren, were the Court's usual order under r 42 of the Uniform Civil Procedure Rules 2005, namely costs as agreed or assessed, to be made in his favour. There appears, however, to be no prospect of recovery of even the amount sought. It is, accordingly, just to exercise the Court's discretion in favour of Mr Warren, to bring the matter to an end and to save any further costs, ensuring that Mr Warren does not have to spend, as was submitted, one further extra dollar on his case against the two defendants. That conclusion also accounts with the objects of s 56 of the Civil Procedure Act, the just, quick and cheap resolution of the real issues in the proceedings.

This order will, I am satisfied, avoid further disadvantage and unnecessary expense being incurred by Mr Warren in relation to the pursuit of something to which he is plainly entitled, but unlikely to recover.

For these reasons, I order that the defendants pay Mr Warren's costs assessed to be $20,000.