Cohen v Double Bay Bowling Club (No 3)

[2021] NSWSC 1020

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Cohen v Double Bay Bowling Club (No 5) [2021] NSWSC 1020

Hearing dates:

On the papers

Decision date:

13 August 2021

Jurisdiction:

Equity - Technology and Construction List

Before:

Stevenson J

Decision:

Plaintiffs to pay first defendant’s costs on an indemnity basis

Catchwords:

COSTS – indemnity costs – whether plaintiffs maintained proceedings having no reasonable prospects of success

Cases Cited:

Cohen v Double Bay Bowling Club (No 2) [2021] NSWSC 872

Cohen v Double Bay Bowling Club [2021] NSWSC 295

Category:

Procedural rulings

Parties:

Gregory Clive Cohen (First Plaintiff/Respondent)
Mariela Sverdloff (Second Plaintiff/Respondent)
Double Bay Bowling Club (First Defendant/Applicant)
Brianda Pty Ltd (Second Defendant)
CF Group Piling Pty Ltd (Third Defendant)

Representation:

Counsel:
D Weinberger (Plaintiffs/Respondents)
J E Lazarus SC with M E Sheldon (First Defendant/Applicant)
D Macfarlane (Third Defendant)

Solicitors:
Crisp Law (Plaintiffs/Respondents)
Lazarus Legal Group (First Defendant/Applicant)
McCabe Curwood Pty Ltd (Second Defendant)
Kennedys (Third Defendant)

File Number(s):

2019/170616

Judgment

1. On 20 July 2021 I ordered that these proceedings be dismissed with costs, as against the first defendant, Double Bay Bowling Club.

2. I have now received written submissions in relation to the Club’s application for indemnity costs.

3. The parties agree that I may deal with this question on the papers.

4. There is no dispute as to the relevant principles, which were summarised in the Club’s submissions as follows:

“The principles concerning when the Court may order indemnity costs are well established. The usual rule is that costs are payable on the ‘ordinary basis’, however the Court has a broad discretion. Although the categories are not closed, typical situations in which courts have exercised their discretion to make an order for indemnity costs include:

(a)   where a claim has been commenced or continued in circumstances where the plaintiff should have known that there was no chance of success;

(b)    where a party maintains proceedings, having no reasonable prospects of success;

(c)    where a party belatedly abandons substantial parts of its case; and

(d)    where the proceedings have been conducted in such a way as to cause unreasonable expense or delay.” (Citations omitted.)

5. Any one of these circumstances might, in an appropriate case, justify an order for indemnity costs.

6. The unsatisfactory manner in which the plaintiffs have conducted these proceedings is summarised in my judgment of 20 July 2021,[1] and also my earlier judgment of 26 March 2021. [2]

   1. Cohen v Double Bay Bowling Club (No 2) [2021] NSWSC 872.

   2. Cohen v Double Bay Bowling Club [2021] NSWSC 295.

7. As I recorded in my judgment of 26 March 2021, the plaintiffs’ counsel accepted that the proceedings have had a “long and tortured history”. [3]

   3. Ibid, at [4].

8. Whether or not it can be concluded that the plaintiffs should have known that the claim against the Club had no chance of success, [4] the history of the matter shows that they have maintained proceedings which did not in fact have reasonable prospects of success, [5] that they have, belatedly, abandoned substantial parts of their claim [6] and have conducted the proceedings as against the Club in a manner that has caused unreasonable costs and delay. [7]

   4. See [4(a)] above.

   5. See [4(b)] above.

   6. See [4(c)] above.

   7. See [4(d)] above.

9. On behalf of the plaintiffs it was submitted that “the fact that certain causes of action were subsequently abandoned is an entirely neutral matter because the underlying facts, matters and circumstances relied upon by the plaintiffs against the Club did not change”.

10. I do not agree.

11. The plaintiffs’ abandonment of the causes of action identified in my judgments is not a neutral matter because it had the effect of changing, fundamentally, the manner in which the plaintiffs propounded their claim against the Club.

12. In the result, I have found the most recent iteration of the plaintiffs’ proposed pleadings to be so weak that I have refused to grant them leave to rely on it and have, looking at the matter overall, decided that the case against the Club should be dismissed.

13. In my opinion, this is an appropriate matter in which an order for indemnity costs should be made.

14. I order that the plaintiffs’ pay the first defendant’s costs of the proceedings on an indemnity basis.

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Endnotes

Amendments

17 February 2022 - Case name on coversheet corrected to (No 5)