[2023] NSWCA 293

Hart v MetLife Insurance Limited (No 2)

1. The costs incurred by the appellant and by the respondent in proceeding 2022/77139 prior to 31 May 2022 be costs in the cause. 2. There be no orders as to the parties’ costs of proceeding 2022/77139 from 31 May 2022 to 28 September 2023, or of the appeal (proceeding 2022/286577), with the intent that the parties bear their own costs.

Catchwords

COSTS – partial success – part of proceedings remitted – agreement as to principled exercise of costs discretion – orders made accordingly

Cases cited

Hart v MetLife Insurance Limited[2023] NSWCA 230

Judgment

[1]
THE COURT: By judgment delivered on 28 September 2023, this Court allowed an appeal, set aside certain orders made at first instance, and ordered that the proceedings in respect of certain parts of the Statement of Claim be remitted to the Equity Division for determination: Hart v MetLife Insurance Limited [2023] NSWCA 230. Relevantly for present purposes, the parties were also directed to supply written submissions on the question of costs. That has occurred, in accordance with the timetable, by submissions filed on 5 and 11 October 2023. What follows assumes familiarity with the reasons in the earlier judgment.
[2]
MetLife proposed dividing the parties’ costs, for the purposes of exercising the discretion, into three categories, namely:
1. (1)
  Costs incurred in the proceeding in the Equity Division prior to 31 May 2022;
2. (2)
  Costs incurred in determining and dismissing Ms Hart’s claim for declaratory relief; and
3. (3)
  Costs incurred after the first hearing in the Court of Appeal, which were related to the application for and determination of the application for leave to amend.
[3]
It is common ground that the first category of costs should be costs in the cause. That is appropriate; there has been no determination of the issues remitted to the Equity Division.
[4]
MetLife proposed that there be no order as to the costs in the second and third categories, on the basis that each side had contributed to the costs directed to the determination of declaratory relief, and that the application for leave to amend was prompted by the Court rather than Ms Hart. Without agreeing with every aspect of MetLife’s submissions, Ms Hart also accepted that the parties should bear their own costs in the second and third categories.
[5]
The parties being agreed in principle, and the delineation of costs in the way articulated by MetLife and accepted by Ms Hart being unlikely to give rise to any practical difficulties in attributing costs to a particular category, we agree that it is appropriate for the discretion as to costs to be exercised in the manner that is common ground between the parties.
[6]
Ms Hart supplied a formulation of costs orders as follows:
1. (1)
  The costs incurred by the appellant and by the respondent in proceeding 2022/77139 prior to 31 May 2022 be costs in the cause.
2. (2)
  The appellant and the respondent are to bear their own costs incurred in proceeding 2022/77139 from 31 May 2022 to 28 September 2023.
3. (3)
  The appellant and the respondent are to bear their own costs of the appeal (proceeding 2022/286577).
[7]
A preferable formulation of orders the effect of which is for each party to bear her or its own costs is for the orders to provide that “There be no order as to costs, with the intent that the parties bear their own costs”. That formulation prevents there being any misconception that the court order compels the client to pay the lawyer’s costs.
[8]
The agreed outcome may be achieved by the following orders, which the Court makes: