Nichols v Singleton Council (No 3)  NSWSC 367
In Nichols v Singleton Council  NSWSC 1517,the plaintiff,
a councillor with Singleton Council (the Council)
sought relief against the Council, Mr Smith, Mr Greensill and Mr
Thomson, all employees and/or agents of the Council, in relation to
a complaint made about him under the Council's Code of Conduct.
The plaintiff sought orders restraining the defendants from dealing
any further with the complaint. The court found in favour of the
plaintiff as against the Council, Mr Smith and Mr Greensill, but
not Mr Thomson. The defendants were jointly represented at the
The plaintiff and defendants subsequently made various
submissions to the Court on the issue of costs. In particular, two
submissions were made that provide a useful overview of how costs
may be apportioned in circumstances where there are multiple
defendants and multiple claims against those defendants have been
made, a not uncommon occurrence in insurance cases. The submissions
that the circumstances justified a Sanderson type order being
made in relation to Mr Thomson's costs. A Sanderson order is an
order which requires the unsuccessful defendants to pay the costs
of the successful defendants leaving the plaintiff out of the
process entirely (submitted by the plaintiff); and
that the plaintiff should obtain a reduced portion of costs as
against the unsuccessful defendants on the basis that he was not
successful on all his claims against them (submitted by the
We discuss the Courts consideration of these two submissions
Submission 1 - Sanderson Order:
The Court stated that, in circumstances where the plaintiff was
successful against three out of four defendants, the usual order
would be for the unsuccessful defendants to pay the costs of the
plaintiff and the plaintiff to pay the costs of the successful
defendant. The overriding consideration in varying the usual order
and making a Sanderson type order is whether the circumstances are
such that the successful party's costs should be paid by a
particular unsuccessful party.
The court did not find that the facts warranted departing from
the usual costs order in relation to Mr Thomson, and a Sanderson
order was not made. The Court's reasoning for this
an order for costs in favour of the successful party is
compensatory in nature and not punitive;
to deprive Mr Thomson of a costs order would not be just;
in Mr Thomson's instance, it is the plaintiff who is the
unsuccessful party and there was nothing to show that Mr
Thomson's joinder as a defendant was a result of anything which
he or the Council and other defendants did.
The Court did however find that given the joint representation
in the proceedings and the fact that all of the defendants advanced
the same cases, some assessment must be made as to what proportion
of the case concerned the claims advanced against Mr Thomson.
Importantly the Court assessed that the claim against Mr Thomson
only involved 15 per cent of the time taken in the proceedings and
therefore that the plaintiff should not have to bear more than a 15
per cent share of the costs incurred by the four defendants in
their joint representation.
Submission 2 – reduced costs awarded to the plaintiff
on the basis that he was not successful on all claims
The Court did not accept the defendants' submission that the
plaintiff should have to pay a reduced portion of the costs of the
unsuccessful defendants because he was not successful on all his
claims against them. It found that whilst the plaintiff did not
make out all of his complaints, he did not unreasonably pursue any
of the issues on which he failed.
Further, the Court found that the case advanced by the plaintiff
against the three unsuccessful defendants did not involve clearly
discrete issues in respect of which the time taken on each issue
could be readily identified or realistically estimated and it would
be unreasonable to seek to separate out the time taken in relation
to the issues on which the plaintiff did not succeed.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).