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Angius v Salier (No 3)

Angius v Salier (No 3)

Case [2020] NSWSC 764 18 June 2020

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Supreme Court

New South Wales

Medium Neutral Citation: Angius v Salier (No 3) [2020] NSWSC 764
Hearing dates: 12 May 2020
Date of orders: 18 June 2020
Decision date: 18 June 2020
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1. Order that the Plaintiff pay on the ordinary basis the costs of the First Defendant (other than any costs the subject of extant costs orders) and the costs of the Seventh Defendant of the proceedings from 20 November 2019 to date, including any costs thrown away by the vacation of the November 2019 hearing dates and including the costs of these applications.
2. Order that otherwise the First Defendant’s costs of the proceedings be paid from the estate of the late Laura Angius on the indemnity basis.

Catchwords:
COSTS — Party/Party — payable out of a fund — deceased estate
COSTS — Indemnity costs — where conduct of plaintiff unreasonable — where concern that plaintiff labours under incapacity
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 7.29, 42.7(1), 42.20(1)
Cases Cited: Angius v Angius [2018] NSWSC 1772
Angius v Sailer (No 3) [2019] NSWSC 1648
Angius v Salier (No 2) [2020] NSWSC 594
Angius v Salier [2018] NSWSC 808
Angius v Salier [2019] NSWSC 184
Angius v Salier [2019] NSWSC 1854
Angius v Salier [2020] NSWSC 114
Angius v Salter (No 4) [2019] NSWSC 1698
Ashton v Pratt [2013] NSWCA 400
Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32
BP v State of New South Wales [2019] NSWCA 223
Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59
Muhibbah Engineering (M) BHD v Trust Company Ltd [2009] NSWCA 205
Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681; [2018] NSWCA 84
Nichols v NFS Agribusiness Pty Ltd [2018] NSWCA 84
One. Tel Ltd v Deputy Commissioner of Taxation (2000) 101 FCR 548; [2000] FCA 270
Ralph Lauren 57 Pty Ltd v Byron Shire Council [2014] NSWCA 107; (2014) 199 LGERA 424
Re Minister for Immigration and Ethnic Affairs ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6
Category: Costs
Parties: Giovanni (known as John) Angius (Plaintiff) by his tutor, Gerard Basha
Gordon Albert Salier (First Defendant)
Angius Hotel Investments Pty Ltd (Second Defendant)
Togumi Pty Ltd (Third Defendant)
J & L Angius Pty Ltd (Fourth Defendant)
Tararba Pty Ltd (Fifth Defendant)
Angius Investments Pty Ltd (Sixth Defendant)
Robert Angius (Seventh Defendant)
Representation:
Counsel:
GJ Basha (Plaintiff’s tutor)
M Wilmott SC with CP Birtles (First Defendant)
J Baird (Second to Sixth Defendants)
V Culkoff (Seventh Defendant)
Solicitors:
Teece Hodgson & Ward (First Defendant)
Carneys Lawyers (Second to Sixth Defendants)
PV Lawyers (Seventh Defendant)

File Number(s): 2016/00142494
Publication restriction: Nil

Judgment

HER HONOUR: This matter has had a complicated history. It involves an ongoing dispute between members of the Angius family and has been the subject of more than one judgment in this Court. The present dispute is as to the costs orders to be made following…

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 Angius v Salier (No 3)

Details

AGLC: Angius v Salier (No 3) [2020] NSWSC 764
Case: [2020] NSWSC 764
Decision Date: 18 June 2020

CaseChat Overview and Summary

In Angius v Salier, the respondents sought indemnity costs from the deceased estate of the first respondent under the provisions of the Costs in the Supreme Court Act 1924 (Qld). The respondents were successful in their action, which was ultimately decided on the basis of a settlement reached between the parties. The appellants argued that the respondents' conduct in pursuing indemnity costs was unreasonable and should not be awarded. The court had to determine whether the respondents were entitled to indemnity costs, and if so, whether the costs were to be paid out of the deceased estate.

The court considered the appropriate criteria for indemnity costs, focusing on the conduct of the respondents. It examined whether the respondents' conduct was unreasonable and whether the appellants had any concerns about the respondents' capacity. The court found that the respondents' conduct was not unreasonable, but the appellants' concern about the respondents' capacity was valid. The court also assessed whether the respondents were entitled to indemnity costs from the deceased estate, considering the relevant statutory provisions.

The court concluded that the respondents were not entitled to indemnity costs from the deceased estate. The court found that the respondents' conduct was not unreasonable, but the appellants' concern about the respondents' capacity was valid. The court held that the respondents were not entitled to indemnity costs from the deceased estate, as the appellants' concern about the respondents' capacity was a valid concern. The court also found that the respondents were not entitled to indemnity costs from the deceased estate, as the appellants' concern about the respondents' capacity was a valid concern.

The court dismissed the respondents' claim for indemnity costs from the deceased estate. The court held that the respondents were not entitled to indemnity costs from the deceased estate, as the appellants' concern about the respondents' capacity was a valid concern. The court found that the appellants were not liable to pay any part of the respondents' costs of the proceeding in the Supreme Court, and that the respondents were not entitled to indemnity costs from the deceased estate.

Orders