A v N

Case [2012] NSWSC 549 22 May 2012

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Supreme Court

New South Wales

Medium Neutral Citation: A v N [2012] NSWSC 549
Hearing dates: 18 May 2012
Decision date: 22 May 2012
Jurisdiction: Equity Division
Before: Ward J
Decision:
Costs orders made in favour of plaintiff/cross-defendant and second defendant

Catchwords: COSTS - as between plaintiff/cross-defendant and first defendant/cross-claimant, effect of Calderbank offers - whether unreasonable for plaintiff to reject Calderbank offers - whether unreasonable for first defendant to reject offer made to her (and whether that a Calderbank offer) - as between second defendant and remaining parties who should bear liability for its costs - HELD - apportionment between the plaintiff and first defendant as to costs of the second defendant; order apportioning the costs to be borne as between the plaintiff and the first defendant of their respective costs of the proceeding
Legislation Cited: Civil Procedure Act 2005 (NSW)
Contracts Review Act 1980 (NSW)
Guardianship Act 1987 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Anderson Group Pty Ltd v Tynan Motors Pty Ltd (No 2) [2006] NSWCA 120; 67 NSWLR 706
Baulderstone Hornibrook Engineering Pty Limited v Gordian Runoff Limited (No 2) [2009] NSWCA 12
Bennette v Cohen (No 2) [2009] NSWCA 162
Calderbank v Calderbank [1975] 3 All ER 333; 3 WLR 586
Commonwealth v Gretton [2008] NSWCA 117
Dunstan v Rickwood (No 2) [2007] NSWCA 266
Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 322
Evans of Robb Evans & Associates v European Bank Ltd (No 2) [2009] NSWCA 170
Evans Shire Council v Richardson (No 2) [2006] NSWCA 61
Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20
Golding v Vella (No 2) [2001] NSWSC 731
Hancock v Arnold; Dodd v Arnold (No 2) [2009] NSWCA 19
Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] VSCA 298; 13 VR 435
Herning v GWS Machinery Pty Ltd (No 2) [2005] NSWCA 375
Hobartville Stud Pty Ltd v Union Insurance Co Ltd (1991) 25 NSWLR 358
Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534; (1990) 97 ALR 45
Leichhardt Municipal Council v Green [2004] NSWCA 341
Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721
Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344
Ohn v Walton (1995) 36 NSWLR 77
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72; (1998) 152 ALR 83
Owners Strata Plan No 64970 v Austruc Constructions Ltd (No 5) [2010] NSWSC 586
Shorten v David Hurst Constructions Pty Ltd [2008] NSWSC 609
SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323
Stena Rederi Aktiblag v Austal Ships Sales Pty Ltd [2007] FCA 1141
Sydney City Council v Geftlick [2006] NSWCA 280
Tickell v Trifleska Pty Ltd (1990) 25 NSWLR 353
Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 28 ALR 201; (1979) 42 FLR 213; (1979) ATPR 40-141
Regency Media Pty…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading A v N

Details

AGLC: A v N [2012] NSWSC 549
Case: [2012] NSWSC 549
Decision Date: 22 May 2012

CaseChat Overview and Summary

The case of A v N involved a dispute between multiple parties, with the plaintiff and the first defendant cross-claiming against each other. The primary issues before the court were related to the rejection of Calderbank offers, which are offers made by parties to settle the case on terms that include a provision that the rejecting party will pay the costs if the offerer is ultimately successful. The court had to determine whether it was unreasonable for the plaintiff to reject the first defendant's Calderbank offer and whether it was unreasonable for the first defendant to reject the plaintiff's offer, as well as whether the plaintiff's offer was indeed a Calderbank offer. Additionally, the court needed to decide how the costs associated with the second defendant's involvement in the proceedings should be apportioned among the remaining parties.

The court considered the principles surrounding Calderbank offers and the circumstances of each offer's rejection. It examined the terms of the offers, the context in which they were made, and the subsequent conduct of the parties. In assessing the reasonableness of the rejections, the court took into account the merits of the claims and defenses, the positions of the parties at the time of the offers, and the potential consequences of accepting or rejecting the offers. The court also examined the nature of the plaintiff's offer to determine if it qualified as a Calderbank offer under the relevant legal principles. Finally, the court addressed the issue of cost apportionment, considering the contributions of each party to the proceedings involving the second defendant and the overall fairness of the distribution of costs.

After thorough analysis, the court found that it was not unreasonable for the plaintiff to reject the first defendant's Calderbank offer, but it was unreasonable for the first defendant to reject the plaintiff's offer. The court held that the plaintiff's offer was indeed a Calderbank offer. Regarding cost apportionment, the court determined that the costs associated with the second defendant's involvement should be apportioned between the plaintiff and the first defendant, according to their respective contributions to those costs. The court issued an order specifying the proportion of costs to be borne by each party, ensuring a fair and equitable distribution based on the evidence presented.

The court's final orders included a declaration that the rejection of the Calderbank offer by the first defendant was unreasonable and an order apportioning the costs of the second defendant's involvement in the proceedings between the plaintiff and the first defendant. This decision provided clarity on the application of Calderbank offers and the principles of cost apportionment in complex multi-party litigation.

Orders