Ventura v Higgins (No 2)

The Court delivered its primary judgment in this matter on 21 June 2018: Ventura v Higgins [2018] NSWSC 909.

The issue, under s 135 of the Civil Procedure Act 2005 (NSW), was whether the Court should stay a judgment for costs obtained by the plaintiffs against the defendants until a separate order for costs against the plaintiffs in favour of the second defendant was quantified by assessment.

The judgment in favour of the plaintiffs was obtained in the District Court by the registration of a certificate of costs dated 18 October 2017. In certain proceedings, a judge of this Court had made a costs order in favour of the plaintiffs against the defendants, and a costs order in favour of the second defendant against the plaintiffs. The first of these costs orders reached the point of assessment and the issue of a certificate of costs before the second one did, and the question was whether the judgment in favour of the plaintiffs should be stayed until the costs payable by the plaintiffs to the second defendant could be quantified by assessment.

The matter was before this Court because, on 14 March 2018, an order was made by a judge of the District Court pursuant to ss 140 and 144 of the Civil Procedure Act transferring the proceedings to this Court. All of these matters are dealt with in the principal judgment.

At [57], I stated that I had decided that, the fair order in respect of costs was that all parties should bear their own costs of the notice of motion seeking the stay, with the consequence that the Court would not make any order as to costs.

That was essentially on the basis that, although the defendants had succeeded in obtaining an order for a stay, subject to specific conditions explained at [55], they were in substance seeking an indulgence from the Court, because a material cause of their difficulty was the delay of the second defendant in instituting and pursuing the assessment of the order for costs made in its favour. On the other hand, so far as the conduct of the plaintiffs was concerned, they had not unreasonably contested the application for a stay, but they had been unsuccessful. Furthermore, as explained in the principal judgment, the defendants had taken steps to ensure that the amount of the judgment obtained by the plaintiffs was satisfactorily secured. In those circumstances, the plaintiffs could have avoided the need to incur the costs of the hearing of the notice of motion by coming to some reasonable accommodation with the defendants.

As it happened, when the principal judgment was handed down, the solicitor for the plaintiffs handed to the Court a single page written submission supporting an application that the defendants should be ordered to pay the plaintiffs' costs of the motion. That was essentially on the basis that the defendants had been guilty of "disentitling conduct" of the kind considered in Oshlak v Richmond River Council (1998) 193 CLR 72 at [40] and [69], I assume on the basis of the delay by the first defendant in pursuing the assessment of the costs ordered in its favour. The submission also raised the point that the defendants were seeking an indulgence from the Court.

As the plaintiffs had made this submission, and as I had not yet pronounced any orders, I gave the defendants an opportunity to respond to the submission on costs made by the plaintiffs.

The plaintiffs did so by written submissions delivered on 4 July 2018. Essentially, the defendants gave reasons why the appropriate outcome was that the Court should make no order as to costs, as that would be the fair course. The defendants relied upon the statement of Hodgson JA in Commonwealth of Australia v Gretton [2008] NSWCA 117 at [121].

I have considered the submissions of both parties and have come to the view that the order for costs that I foreshadowed at [57] of the primary judgment is the fair order to make in all of the circumstances. I do so for the reasons originally given.

Accordingly, the order for costs will be: That the Court makes no order for the costs of the notice of motion filed in the District Court of New South Wales at Newcastle on 15 February 2018, with the intent that each of the parties to the notice of motion will pay his or its own costs.