Dickson v Petrie (No 2)

1. [1]

   THE COURT: On 23 May 2025, the Court published reasons for judgment in the substantive proceeding, allowing the appeal in part and dismissing the cross-appeal (see Dickson v Petrie [2025] NSWCA 110). The Court ordered that orders below dated 29 August and 23 October 2024 be set aside. The Court made no order as to the costs of the proceedings below. The respondent was ordered to pay 50% of the appellants’ costs of the appeal and the cross-appellant was ordered to pay 50% of the cross-respondents’ costs of the cross-appeal. The respondent’s notice of objection to competency filed 10 October 2024 was also dismissed, with no order as to costs. We will assume familiarity with the reasons for judgment as well as the abbreviations.

2. [2]

   By a notice of motion filed 5 June 2025 and within the 14-day period permitted, the appellants applied under r 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) seeking to have the orders dated 23 May 2025 varied as follows:

3. [3]

   In support of their motion, the appellants relied on an affidavit dated 5 June 2025 by their instructing solicitor, Lupco Ristevski. The respondent relied on an affidavit dated 26 June 2025 by her instructing solicitor, Peter Geoffrey Clarke. The parties provided written submissions. By consent, the motion was heard and determined on the papers.

4. [4]

   In brief, the appellants seek to have the costs orders varied on the following bases:

5. [5]

   There is no substantial dispute regarding the relevant principles concerning the Court’s power to award costs as well as its power under r 36.16 of the UCPR to vary orders.

6. [6]

   The Court has a broad discretion in determining costs, which discretion must be exercised judicially. The usual position is that costs follow the event but the Court is empowered by s 98 of the Civil Procedure Act 2005 (NSW) (CPA) and r 42.1 of the UCPR to make some other order. The Court observed in Elite Protective Personnel Pty Ltd & Anor v Salmon (No 2) [2007] NSWCA 373 at [8] that whether there should be a departure from the general rule that costs follow the event “depends on the circumstances of the case viewed against the wide discretionary powers of the court, which powers should be liberally construed”. The Court added at [11] that the exercise of the discretion “depends upon matters of impression and evaluation”. To similar effect, in DSHE Holdings Ltd (Receivers and Managers) (in liq) v Potts (No 2) [2022] NSWCA 258 at [9] it was stated that “ … the Court should seek to make an order that is fair in all the circumstances, taking account of the extent to which issues are separable, and without aspiring to the false hope of mathematical precision”.

7. [7]

   The Court’s power to vary an order under r 36.16 of the UCPR requires the identification of some misapprehension of the facts or the relevant law which caused an error to have been made. The relevant principles guiding the exercise of the Court’s power under r 36.16 were helpfully summarised in Majak v Rose (No 5) [2017] NSWCA 238 at [12]ff (emphasis added):

8. [8]

   It may be accepted that, in the reasons for judgment at [161], the Court misidentified the party who had unsuccessfully sought indemnity costs below. But, as the respondent correctly points out, this error was wholly irrelevant to the Court’s determination as to the appropriate orders regarding both costs of the trial and on appeal/cross-appeal. Those orders were based on other conduct of the parties and other relevant matters.

9. [9]

   As to the costs of the trial, it is made clear in the reasons for judgment at [162] that the matter relied on in ordering the parties to bear their own costs of the trial was the primary judge’s observation at PJ[72]-[73] that both parties had changed their positions during the course of the trial, a matter which is borne out by the transcript.

10. [10]

    The mistake as to the identity of the party who unsuccessfully sought indemnity costs below occurred in the context of a general description of the history of the proceeding. The fact that a party to the litigation below had failed to obtain an indemnity costs order played no part in, and had no bearing on, this Court’s reasoning as to why it was appropriate for the parties to bear their own costs of the trial.

11. [11]

    As to the costs of the appeal and cross-appeal, it is well to reproduce [163]-[165] of the reasons for judgment, which explain why costs of the appeal and cross-appeal were awarded as ordered:

12. [12]

    The appellants/cross-respondents have failed to demonstrate any misapprehension of the facts or the relevant law in this part of the Court’s reasons for judgment which would warrant the relevant orders being varied.

13. [13]

    In particular, contrary to the appellants’ claim, the Court did not misapprehend that the respondent was seeking a special or unusual costs order in respect of the costs of the appeal and cross-appeal. The appellants appear to assume that, for the Court to depart from making the usual order that costs follow the event, it is necessary for a party to seek a special or unusual costs order. Subject to the obligation to act judicially (which includes procedural fairness), the Court can make whatever costs order it considers fair and just in all the circumstances. The breadth of the power is manifest in the terms of s 98(1) of the CPA:

14. [14]

    The appellants’ complaint of procedural unfairness concerning the orders for costs relating to the appeal and cross-appeal takes the matter no further. They have now had an opportunity to persuade the Court to vary the orders and the Court has given careful consideration to their submissions and evidence. We are unpersuaded, however, to vary the orders in the manner sought by them.

15. [15]

    In particular:

16. [16]

    As was observed in the reasons for judgment at [167], the Court took the view that different issues were raised by the respondent’s unsuccessful notice of objection to competency. The Court made reference to recent decisions of the Court in Owners Corporation Strata Plan 533 v Random Primer Pty Ltd [2025] NSWCA 8 and Theunissen v Barter [2025] NSWCA 50 where costs were awarded in relation to an unsuccessful objection to competency. The Court then proceeded at [175] to explain why it considered those cases to be distinguishable. It is well to reproduce [175] and [176]:

17. [17]

    The appellants have not identified any misapprehension of fact or law which would warrant that particular order being varied.

Conclusion

1. [18]

   For these reasons, the notice of motion will be dismissed and the appellants ordered to pay the respondent’s costs of and incidental to the motion (see Fuller v Albert (No 2) [2021] NSWCA 183 at [32]).