Dank v Whittaker (No 6)

HER HONOUR: The Court has determined a number of interlocutory applications in these proceedings. In most instances, the costs of those applications have either been determined by the Court or agreed between the parties. This judgment determines a short issue raised in respect of matters argued on 6 December 2013 on which the parties were subsequently unable to agree.

Mr Blackburn SC, who appears with Ms Barnett for the defendants, sought an order that the plaintiff pay the defendants’ costs of 5 and 6 December 2013, together with “costs thrown away by virtue of having to reformulate [the defendants’] objections [in proceedings] 114 and 118 in the light of the proposed further amended statement of claim”: T74.06. The defendants acknowledge that the costs of 5 December 2013 have since been dealt with by separate order: see Dank v Whittaker (No 5) [2014] NSW SC 914. The application for those costs was not pressed.

However, the defendants pressed for an order that the plaintiff pay their costs of 6 December 2013 and the costs thrown away in having to reformulate their objections to the pleadings and that those costs be assessed on an indemnity basis. The defendants relied upon a short chronology of the pleading history. The significant aspects of the chronology are that, in early September 2013, amended statements of claim were served; in late September 2013 the defendants identified their objections to those pleadings; on 4 October 2013 and 1 November 2013 proposed amended pleadings were served and on 8 November 2013 the defendants identified their objections to those proposed pleadings. The plaintiff did not respond to the objections notified on 8 November 2013 and on 6 December 2013 the plaintiff, then represented by different counsel, conceded almost all of the objections that had been taken. Mr Blackburn described the conduct of the plaintiff’s case in those circumstances as “grotesque”.

The plaintiff does not oppose an order that he pay the defendants’ costs of the argument on 6 December 2013 and the costs thrown away by reason of the service of the proposed amended statement of claim, in each case as agreed or assessed on the ordinary basis. Mr Smark SC submitted, however, that in light of the concessions made by him on 6 December 2013, an indemnity costs order would be inapposite.

While the history of the pleadings set out above is undoubtedly unsatisfactory, Mr Smark’s submissions have persuaded me that the appropriate order is that consented to by the plaintiff. The description of the plaintiff’s conduct as “grotesque” is, I think, extravagant. I am not persuaded that a special order for costs is warranted, particularly having regard to the very reasonable approach taken by Mr Smark when the matter was ultimately argued on 6 December 2013.

The order of the Court is that the plaintiff pay the defendants’ costs of 6 December 2013 and the costs thrown away by virtue of having to reformulate objections to the 114 and 118 pleadings in light of the proposed further amended statements of claim in those proceedings as agreed or assessed on the ordinary basis.