Agricultural and Rural Finance Pty Ltd v Brakatselos - [2012] NSWCA 17

Court of Appeal

New South Wales

Case Title: Agricultural and Rural Finance Pty Ltd v Brakatselos

Medium Neutral Citation: [2012] NSWCA 17

Hearing Date(s): 14-16 February 2012

Decision Date: 16 February 2012

Jurisdiction:

Before:
Campbell JA at [1], [11]
Barrett JA at [9]
Sackville AJA [10]

Decision:
Application for leave to cross appeal, insofar as it relates to the applications for leave to cross appeal against the two costs orders, is dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
COSTS - indemnity costs - where offer of compromise or Calderbank letter - applicants seek leave to cross appeal against costs orders in Court below - where primary judge ordered costs on the usual basis despite Calderbank offer - applicant argued that a correct exercise of the discretion would have resulted in an award for indemnity costs in its favour - consideration of Jones v Bradley (No 2) - insufficient reason to interfere with primary judge's exercise of discretion - leave refused

Legislation Cited:
Supreme Court Act 1970

Cases Cited:
Jones v Bradley (No 2) [2003] NSWCA 258

Texts Cited:

Category: Interlocutory applications

Parties:
Agricultural and Rural Finance Pty Ltd (Applicant)
Peter Brakatselos (First Respondent)
Geoffrey Nevell Fredericksen (Second Respondent)
Allan Patrick Holmes (Third Respondent)
Nicholas Charles Rowe (Fourth Respondent)
Maria Francesco Russo (Fifth Respondent)
David James Wardle (Sixth Respondent)
Jennifer Dianne Wallace (Seventh Respondent)
Franco Giannuzzi (Eighth Respondent)
Gavin Winston Long (Ninth Respondent)
Maria Michael (Tenth Respondent)
Christina Spyrakis (Eleventh Respondent)

Representation

- Counsel:
Counsel
TS Hale SC; CJ Bevan (Applicant)
SD Epstein SC; A Tsekouras (Respondents)

- Solicitors:
Solicitors
Evangelos Patakas & Associates (Applicant)
Abadee Dresdner Freeman Lawyers (Respondents)

File number(s): 2003/92819

Decision Under Appeal

- Court / Tribunal: Supreme Court

- Before: Einstein J

- Date of Decision: 09 June 2011

- Citation:

- Court File Number(s) 2003/92819

Publication Restriction:

JUDGMENT

CAMPBELL JA : Agricultural and Rural Finance Pty Limited (" ARF ") succeeded in the Supreme Court in a claim for debt against numerous defendants. Some of those defendants have now appealed or else seek leave to appeal. I will refer to them all as appellants.
ARF seeks leave to cross appeal in relation to the refusal of the trial judge to grant it indemnity costs. It also originally sought leave to cross appeal against the refusal of the trial judge to make an order for costs in its favour concerning one day's hearing on 7 June 2011. However, on the hearing of the application for leave to appeal Mr Hale of Senior Counsel, who appears for ARF, withdrew the latter application.
If the appellants and applicants for leave to appeal were to…

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 Agricultural and Rural Finance Pty Ltd v Brakatselos

Details

AGLC: Agricultural and Rural Finance Pty Ltd v Brakatselos [2012] NSWCA 17
Case: [2012] NSWCA 17
Decision Date: 16 February 2012

CaseChat Overview and Summary

Agricultural and Rural Finance Pty Ltd (the applicant) sought leave to cross-appeal against costs orders made by the primary judge in favour of Brakatselos (the respondent). The dispute concerned the applicant's entitlement to indemnity costs, despite the primary judge ordering costs on the usual basis, notwithstanding the existence of a Calderbank offer made by the applicant.

The central legal issue before the Court of Appeal was whether the primary judge had erred in the exercise of their discretion by refusing to award indemnity costs to the applicant. The applicant contended that a proper application of the principles governing Calderbank offers would have led to an order for indemnity costs in its favour.

The Court of Appeal considered the principles established in *Jones v Bradley (No 2)* regarding the exercise of discretion in awarding indemnity costs following a Calderbank offer. The Court found that there were insufficient grounds to interfere with the primary judge's decision. The primary judge's refusal to award indemnity costs was considered a valid exercise of discretion, and the applicant had not demonstrated any error in that determination.

Consequently, the application for leave to cross-appeal, in so far as it related to the costs orders, was dismissed. The applicant was ordered to pay the respondent's costs.

Orders

Orders of the court

Application for leave to cross appeal, insofar as it relates to the applications for leave to cross appeal against the two costs orders, is dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Case Title:	Agricultural and Rural Finance Pty Ltd v Brakatselos
Medium Neutral Citation:	[2012] NSWCA 17
Hearing Date(s):	14-16 February 2012
Decision Date:	16 February 2012
Jurisdiction:
Before:	Campbell JA at [1], [11] Barrett JA at [9] Sackville AJA [10]
Decision:	Application for leave to cross appeal, insofar as it relates to the applications for leave to cross appeal against the two costs orders, is dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	COSTS - indemnity costs - where offer of compromise or Calderbank letter - applicants seek leave to cross appeal against costs orders in Court below - where primary judge ordered costs on the usual basis despite Calderbank offer - applicant argued that a correct exercise of the discretion would have resulted in an award for indemnity costs in its favour - consideration of Jones v Bradley (No 2) - insufficient reason to interfere with primary judge's exercise of discretion - leave refused
Legislation Cited:	Supreme Court Act 1970
Cases Cited:	Jones v Bradley (No 2) [2003] NSWCA 258
Texts Cited:
Category:	Interlocutory applications
Parties:	Agricultural and Rural Finance Pty Ltd (Applicant) Peter Brakatselos (First Respondent) Geoffrey Nevell Fredericksen (Second Respondent) Allan Patrick Holmes (Third Respondent) Nicholas Charles Rowe (Fourth Respondent) Maria Francesco Russo (Fifth Respondent) David James Wardle (Sixth Respondent) Jennifer Dianne Wallace (Seventh Respondent) Franco Giannuzzi (Eighth Respondent) Gavin Winston Long (Ninth Respondent) Maria Michael (Tenth Respondent) Christina Spyrakis (Eleventh Respondent)
Representation
- Counsel:	Counsel TS Hale SC; CJ Bevan (Applicant) SD Epstein SC; A Tsekouras (Respondents)
- Solicitors:	Solicitors Evangelos Patakas & Associates (Applicant) Abadee Dresdner Freeman Lawyers (Respondents)
File number(s):	2003/92819
Decision Under Appeal
- Court / Tribunal:	Supreme Court
- Before:	Einstein J
- Date of Decision:	09 June 2011
- Citation:
- Court File Number(s)	2003/92819
Publication Restriction: