ANZ Banking Group v Londish (No 2) - [2014] NSWSC 432

Supreme Court

New South Wales

Medium Neutral Citation: ANZ Banking Group v Londish (No 2) [2014] NSWSC 432
Hearing dates: On the papers
Decision date: 11 April 2014
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1) Order the first defendant to pay the second and third defendants' costs of the proceedings

Catchwords: COSTS - whether joinder of additional defendant was reasonable - where the question of whether plaintiff's alternate claim against party joined would have been successful becomes hypothetical due to plaintiff's success against the first defendant - where plaintiff's alternate claim against joinder party is at least arguable - relevance of first defendant's insolvency
Legislation Cited: Contracts Review Act 1980 (NSW)
Cases Cited: ANZ Banking Group v Londish [2014] NSWSC 202
Australia and New Zealand Banking Group v Londish [2013] NSWSC 1423
Hills Industries Limited v Australian Financial Services and Leasing Pty Limited [2012] NSWCA 380
Schipp v Cameron (Supreme Court (NSW), Einstein J, 12 October 1998)
Category: Costs
Parties: Australian & New Zealand Banking Group (Plaintiff)
Vicki Christine Londish (First Defendant)
Perpetual Trustee Company Limited as custodian for Fidante Partners Limited (Second Defendant)
Fidante Partners Limited (Third Defendant)
Representation: Counsel:
J StoljarSC/RI Bellamy (Plaintiff)
G Drew (First Defendant)
V Bedrossian (Second and Third Defendants)
Solicitors:
Gadens Lawyers (Plaintiff)
JSA Legal (First Defendant)
Norton Rose Fulbright (Second and Third Defendants)

File Number(s): 2012/60587
Publication restriction: Nil

Judgment

Introduction

On 12 March 2014 I published my reasons for judgment in the substantive proceedings: ANZ Banking Group v Londish [2014] NSWSC 202 (the principal judgment). I made an order that the first defendant (Mrs Londish) pay the plaintiff's (ANZ) and the second and third defendants' (Perpetual) costs of the proceedings that would take effect if no party applied for a different order. Perpetual has applied for an order that:

ANZ pay its costs of the proceedings on an ordinary basis up to and including 13 November 2013 and thereafter on an indemnity basis, as agreed or assessed.

ANZ resisted Perpetual's application and contended that the order I proposed ought be made. By consent of the parties, the matter has been determined in chambers on the basis of evidence and written submissions.

Mrs Londish confirmed that she did not wish to make submissions as to the appropriate costs order or in response to the submissions of either ANZ or Perpetual.

This decision ought be read with the principal judgment.

Evidence

Perpetual read, in support of its application, an affidavit of Christopher Cruikshank sworn 21 March 2014 in which the deponent deposed that, as at 13 November 2013, Perpetual had incurred costs of $84,000. It also tendered a Calderbank offer dated 13 November 2013 which was expressed to be open for acceptance until 4 pm on 27 November 2013 in which Perpetual offered to settle the proceedings on the basis of the ANZ discontinuing the proceedings against it with no order as to costs.

Perpetual also relied on a notice to admit facts served on…

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.

Keep reading for free

Create a free CaseChat account to read ANZ Banking Group v Londish (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] NSWSC 432
Decision Date: 11 April 2014

CaseChat Overview and Summary

ANZ Banking Group filed an application against Mrs Londish, Perpetual and another party (referred to as the second and third defendants), seeking damages for alleged breaches of contract and unjust enrichment. The case was heard in the Supreme Court of New South Wales. The central issue for the court was to determine whether the ANZ, as the plaintiff, should bear the costs of the proceedings against the second and third defendants, now identified as Perpetual. This arose from the ANZ's unsuccessful claim against Perpetual, which was made in restitution. The court needed to consider whether the joinder of Perpetual was reasonable, and if the ANZ's claim against Perpetual was at least arguable, despite the ANZ's ultimate success against Mrs Londish.

The court examined the legal precedents and submissions from both parties, particularly focusing on the concept of reasonableness in joining additional defendants and the implications of the Calderbank offer made by Perpetual. The ANZ argued that it had extended an offer to Mrs Londish to settle the proceedings, which was a factor in determining the costs. Perpetual, on the other hand, argued that the ANZ's failure to accept its Calderbank offer and its unsuccessful claim against it should result in the ANZ bearing the costs. The court considered the risk ANZ took by not obtaining relief against Perpetual and the hypothetical nature of Perpetual's claim given the outcome against Mrs Londish.

The court ruled that the ANZ should bear the costs of the proceedings against Perpetual. The reasoning was that the ANZ's claim against Perpetual was at least arguable, and it was reasonable for the ANZ to join Perpetual as a defendant. The court noted that while the ANZ was successful against Mrs Londish, the question of whether the alternate claim against Perpetual would have been successful became hypothetical. The court found that the risk taken by ANZ in pursuing the claim against Perpetual warranted that the ANZ should bear its own costs. The court also considered the insolvency of Mrs Londish, which added complexity to the recovery of costs from her.

In conclusion, the court ordered that ANZ bear the costs of the proceedings against Perpetual, reflecting the reasonable joinder of Perpetual and the arguable nature of ANZ's claim against it.

Orders

Orders of the court

Full text does not contain this section.

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

On 12 March 2014 I published my reasons for judgment in the substantive proceedings: ANZ Banking Group v Londish [2014] NSWSC 202 (the principal judgment). I made an order that the first defendant (Mrs Londish) pay the plaintiff's (ANZ) and the second and third defendants' (Perpetual) costs of the proceedings that would take effect if no party applied for a different order. Perpetual has applied for an order that: ANZ resisted Perpetual's application and contended that the order I proposed ought be made. By consent of the parties, the matter has been determined in chambers on the basis of evidence and written submissions. Mrs Londish confirmed that she did not wish to make submissions as to the appropriate costs order or in response to the submissions of either ANZ or Perpetual. This decision ought be read with the principal judgment. Perpetual read, in support of its application, an affidavit of Christopher Cruikshank sworn 21 March 2014 in which the deponent deposed that, as at 13 November 2013, Perpetual had incurred costs of $84,000. It also tendered a Calderbank offer dated 13 November 2013 which was expressed to be open for acceptance until 4 pm on 27 November 2013 in which Perpetual offered to settle the proceedings on the basis of the ANZ discontinuing the proceedings against it with no order as to costs. Perpetual also relied on a notice to admit facts served on ANZ on 22 March 2013 in which it sought admissions regarding various matters germane to ANZ's claim against it. ANZ disputed each of these facts by notice dated 5 April 2013. The ANZ read, in opposition to Perpetual's application, an affidavit of Kylie Rae sworn 25 March 2013, to which was annexed an email and attached letter dated 10 October 2013 from ANZ's solicitors to Mrs Londish's solicitors in which the ANZ invited Mrs Londish to put an offer to the ANZ to settle the proceedings. The letter read in part: Perpetual contended that the ANZ ought pay its costs because the ANZ was the only party which made a claim against it and it had been unsuccessful in its claim in that it had not been granted any relief against Perpetual. ANZ's claim against Perpetual was brought in restitution. Perpetual submitted that the following factual findings made in the principal judgment had the effect that the ANZ was unsuccessful in its claim for restitution against Perpetual and therefore ought pay its costs: Perpetual argued that it ought not be left to bear its costs of the proceedings in circumstances where the ANZ took the risk that, if it was successful against Mrs Londish, it would fail to obtain any relief against Perpetual. Perpetual submitted that it was in the interests of justice that Perpetual not be left to recover its costs against Mrs Londish because of the risk that she was insolvent. It relied on the following passage from Ritchie's Supreme Court Practice at 42.1.45: Further, and in the alternative, Perpetual relied on its Calderbank offer and submitted that it was unreasonable of ANZ not to accept the offer. It contended that ANZ had been on notice of the arguments Perpetual would advance against it in the substantive proceedings since its application for joinder before Hall J at which such arguments had been foreshadowed: Australia and New Zealand Banking Group v Londish [2013] NSWSC 1423.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	ANZ Banking Group v Londish (No 2) [2014] NSWSC 432
Hearing dates:	On the papers
Decision date:	11 April 2014
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	(1) Order the first defendant to pay the second and third defendants' costs of the proceedings
Catchwords:	COSTS - whether joinder of additional defendant was reasonable - where the question of whether plaintiff's alternate claim against party joined would have been successful becomes hypothetical due to plaintiff's success against the first defendant - where plaintiff's alternate claim against joinder party is at least arguable - relevance of first defendant's insolvency
Legislation Cited:	Contracts Review Act 1980 (NSW)
Cases Cited:	ANZ Banking Group v Londish [2014] NSWSC 202 Australia and New Zealand Banking Group v Londish [2013] NSWSC 1423 Hills Industries Limited v Australian Financial Services and Leasing Pty Limited [2012] NSWCA 380 Schipp v Cameron (Supreme Court (NSW), Einstein J, 12 October 1998)
Category:	Costs
Parties:	Australian & New Zealand Banking Group (Plaintiff) Vicki Christine Londish (First Defendant) Perpetual Trustee Company Limited as custodian for Fidante Partners Limited (Second Defendant) Fidante Partners Limited (Third Defendant)
Representation:	Counsel: J StoljarSC/RI Bellamy (Plaintiff) G Drew (First Defendant) V Bedrossian (Second and Third Defendants) Solicitors: Gadens Lawyers (Plaintiff) JSA Legal (First Defendant) Norton Rose Fulbright (Second and Third Defendants)
File Number(s):	2012/60587
Publication restriction:	Nil