Feldman v The Daily Beast Company LLC (No 2)

[2017] NSWSC 1651

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Feldman v The Daily Beast Company LLC (No 2) [2017] NSWSC 1651
Hearing dates:	24 November 2017
Decision date:	24 November 2017
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	No order as to costs
Catchwords:	COSTS – where proposed foreign defendant succeeded in having service set aside – whether costs should follow the event
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), r 12.11
Cases Cited:	Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 Bleyer v Google Inc (2014) 88 NSWLR 670; [2014] NSWSC 897 Feldman v The Daily Beast Company LLC [2017] NSWSC 831
Category:	Costs
Parties:	Yosef Yitzchak Feldman (plaintiff) Emily Shire (second defendant) The Daily Beast LLC (third defendant)
Representation:	Counsel: J Cohen (plaintiff) RA Jedrzejczyk (third defendant)   Solicitors: Addisons Lawyers (third defendant)
File Number(s):	2017244766
Publication restriction:	None

Judgment

1. HER HONOUR: In these proceedings the plaintiff served an originating process on a foreign defendant, a company named The Daily Beast Company LLC. The Daily Beast moved pursuant to r 12.11 of the Uniform Civil Procedure Rules 2005 (NSW) to have service set aside. I determined that application in a judgment given earlier this year in Feldman v The Daily Beast Company LLC [2017] NSWSC 831. I granted The Daily Beast leave to make an application for its costs which it duly did. The Daily Beast today contends that having been successful in the application, it should have its costs in accordance with the usual rule.

2. Mr Cohen, who appears for Rabbi Feldman today, but who did not appear on the application, submits that there are several factors which warrant the Court departing from the usual rule of awarding costs to follow the event. First, he noted that the application raised a novel issue, invoking the decision of the High Court in Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41, but in circumstances where the reason argued for setting aside service did not fall within any category that had previously been recognised in accordance with the principles stated in that case.

3. Secondly, he noted that the result of the application was that Rabbi Feldman's claim against The Daily Beast was not determined on its merits, the application having been determined primarily by reference to an application by analogy of the principles stated by me in Bleyer v GoogleInc (2014) 88 NSWLR 670; [2014] NSWSC 897.

4. Thirdly, he submitted that, in effect, The Daily Beast has been granted an indulgence on that account and that the principles that apply to the determination of costs where a party receives something in the nature of an indulgence should apply. In particular, he noted that The Daily Beast has been spared the costs of defending the proceedings and that that position was reached in part due to the serendipity of there having been many other proceedings commenced by Rabbi Feldman against other parties, a matter that does not visit any cost or inconvenience upon The Daily Beast but which has been to its advantage.

5. Finally, he noted that Agar v Hyde was decided some 17 years ago and that its consideration of the inconvenience of bringing a foreign defendant to town is of less relevance in a modern era where electronic communications render overseas dealings more practicable. That I understood to be a further consideration in support of the invocation of the indulgence principle.

6. It does seem to me that this was an unusual case and one in which The Daily Beast has had, if not an indulgence, then certainly the determination of a proceeding in a manner that has spared the need for it to defend the proceedings on the merits and then spared it considerable inconvenience on that basis for partly serendipitous reasons. Mr Cohen's submissions have persuaded me that I should depart from the ordinary rule and that the costs of the matter determined in my earlier judgment should land where they have fallen. The appropriate order is that there be no order as to costs.

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Amendments

07 December 2017 - Formatting issue