Gennacker Pty Ltd v Bennett (No 2)

HIS HONOUR: I have received written submissions on costs from the Bennetts’ solicitor, Mr Paul Smyth and counsel for Gennacker, Mr Eastman.

Mr Smyth referred to the Court’s discretion on the matter of costs conferred by s 98(1) of the Civil Procedure Act 2005, while acknowledging the general rule, enshrined in UCPR r 42.1, that costs follow the event. He also recognised that costs are compensatory, not punitive. Nevertheless, he noted that in the Tribunal the matter of costs is discretionary and raised the question of hardship to the Bennetts if costs were awarded against them. He described them both as vulnerable and elderly, and not in a position to bear the financial burden of an adverse costs order. He argued that the parties should pay their own costs or, at most, the Bennetts should pay no more than 50% of Gennacker’s costs.

However, as Mr Eastman pointed out in his written submissions, I have no evidence of the Bennetts’ financial position (apart from the evidence before the Tribunal that they owned the home in Brisbane as well as the mobile home the subject of the proceedings). Moreover, given that costs are compensatory, it is questionable whether their impecuniosity, even if it were established, is relevant. Mr Smyth referred to no authority on that matter, and Mr Eastman could not locate any.

As to the fact that the award of costs in the Tribunal was discretionary, Mr Eastman correctly pointed out that the legislation governing the Tribunal does not establish a differential costs regime on judicial review. The costs of the proceedings in this Court are governed by s 98 and r 42.1. Accordingly, I am not persuaded that I should make any order other than that costs follow the event.

That said, it appears to me that the Bennetts are entitled to an indemnity certificate under s 6(1) of the Suitors’ Fund Act 1951, whereby they might be indemnified for the amount of costs payable in an amount of up to $10,000. Plainly enough, these are proceedings “in the nature of an appeal”, within the meaning of s 2(1) of that Act. Further, the Tribunal is a “court” for the purposes of s 6(1) of the Act. So much emerges from the reasoning of Shaw J in Krslovic Homes v Timothy Sparkes & Ors [2004] NSWSC 374 at [35] – [46]. His Honour’s approach was adopted by Rothman J, in a case involving a decision of the Tribunal: The Owners – Strata Plan No 37762 v Dinh Phuong Dung Pham & Anor [2006] NSWSC 1442 at [11] – [20].

Accordingly, I order that the 1st and 2nd defendants pay the plaintiff’s costs of these proceedings. Those defendants are granted an indemnity certificate under s 6 of the Suitors’ Fund Act 1951.