Au v Berlach (No 2) - [2022] NSWSC 228

Supreme Court

New South Wales

Medium Neutral Citation: Au v Berlach (No 2) [2022] NSWSC 228
Hearing dates: 4 March 2022
Date of orders: 4 March 2022
Decision date: 04 March 2022
Jurisdiction: Equity
Before: Kunc J
Decision:
Plaintiff to pay costs of the proceedings on the indemnity basis from 20 February 2021

Catchwords:
COSTS – Party/Party – Bases of quantification – Indemnity basis – Calderbank offer made before commencement of proceedings – No issue of principle

Cases Cited:
Au v Berlach [2022] NSWSC 81

Category: Costs
Parties: Gregory Ming Hoi Au (Plaintiff)
David Jonathon Berlach (First Defendant)
Emily Margaret Berlach (Second Defendant)
Representation:
Counsel:

S Brennan (Plaintiff)
T Lynch SC (Defendants)

Solicitors:
Williams Ryman Wong (Plaintiff)
ClarkeKann (Defendants)

File Number(s): 2021/168680
Publication restriction: No

Judgment

EX TEMPORE JUDGMENT (REVISED)

The Court delivered its principal judgment in these proceedings on 22 February 2022 (Au v Berlach [2022] NSWSC 81) (the Principal Judgment). The matter is before me today in relation to the orders that need to be made to give effect to the Principal Judgment and to resolve the question of costs.
These reasons assume familiarity, and should be read with, the Principal Judgment. Defined terms in the Principal Judgment have the same meaning in these reasons. Mr S Brennan of Counsel appeared today for Dr Au, and Mr T Lynch of Senior Counsel appeared for the Berlachs.
The Berlachs seek a number of injunctions, positive and negative, to give effect to the Court’s reasons in relation to the various items that have been placed by Dr Au on and around the Easement and to give effect to their rights as identified in the Principal Judgment. They also seek an order for their costs on the indemnity basis for the entirety of the proceedings based on a Calderbank letter sent on 5 February 2021 to Dr Au, some four months before this litigation was commenced.
The various orders that are sought by the Berlachs to give effect to the Court’s reasons have largely been overtaken by events. The Court has been informed by Mr Brennan that, on his instructions, since publication of my reasons Dr Au has removed all of the articles and structures complained of in the proceedings and, in addition, has removed his family and all of their possessions from the Au property, which has now been listed by him for sale.
There was some dispute between the parties as to whether Dr Au has in fact removed everything complained about, but it does seem clear from what I have been told by both counsel that nearly everything has been removed. Insofar as there is disagreement about whether there is anything left to be removed, I will adjourn the matter for three weeks to see if that can be resolved between the parties without the need for the Court to make any orders.
If the removal of any remaining items cannot be resolved, then my preliminary view is that the appropriate course, particularly in circumstances where…

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 Au v Berlach (No 2)

Details

AGLC: Au v Berlach (No 2) [2022] NSWSC 228
Case: [2022] NSWSC 228
Decision Date: 04 March 2022

CaseChat Overview and Summary

In Au v Berlach (No 2), the court dealt with a dispute between two parties over costs. The matter was heard in the Supreme Court of New South Wales. The plaintiff, Au, sought costs on the indemnity basis from the defendant, Berlach, after Berlach had made a Calderbank offer prior to the commencement of proceedings. The primary legal issue before the court was whether the indemnity basis of costs was appropriate given the circumstances of the Calderbank offer. The court also needed to determine if the offer made before the initiation of proceedings affected the principles governing the award of costs.

The court considered the established principles for awarding costs on an indemnity basis, which generally apply when one party has been successful in the proceedings. The court noted that the indemnity basis is a higher standard, requiring the successful party to be compensated for all costs, including legal fees, incurred in the proceedings. However, the court also recognised that a Calderbank offer, which is a conditional offer to settle made without admission of liability, could influence the court's discretion in awarding costs. Despite the offer being made before the commencement of proceedings, the court found no issue of principle that precluded it from considering the indemnity basis in light of the Calderbank offer.

After weighing the principles and the specific circumstances of the case, the court determined that the indemnity basis was appropriate for quantifying the costs. The court concluded that the Calderbank offer did not alter the fundamental principles governing the award of costs. The court found that the defendant's pre-proceedings offer, while not an admission of liability, was relevant in the context of assessing the overall fairness and reasonableness of the costs awarded. Consequently, the plaintiff was entitled to costs on the indemnity basis.

The court ordered the defendant to pay the plaintiff's costs on the indemnity basis, as determined by the court. The order reflected the court's finding that the pre-proceedings Calderbank offer did not prevent the application of the indemnity principle in this case.

Orders