Legal Research
Cases
Beech v Squire (No 2)

Beech v Squire (No 2)

Case [2018] NSWSC 605 7 May 2018

No judgment structure available for this case.

Type to search within this case.

Supreme Court

New South Wales

Medium Neutral Citation: Beech v Squire (No 2) [2018] NSWSC 605
Date of orders: 07 May 2018
Decision date: 07 May 2018
Jurisdiction: Equity - Family Provision List
Before: Kunc J
Decision:
Application for indemnity costs dismissed

Catchwords: COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers — Offer of compromise contained no element of compromise — No issue of principle — UCPR Pt 20 r 20.26, Pt 42 r 42.15A
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Beech v Squire [2018] NSWSC 594
Calderbank v Calderbank [1975] 3 All ER 333
Leach v Nominal (QBE Insurance (Australia) Ltd) (No 2) (2014) NSWCA 391
Category: Costs
Parties:
Claire Louise Isobel Beech (First Plaintiff)
Paul Francis Aubrey Squire (Second Plaintiff)
Corrine Ann Squire (Defendant)
Representation:
Counsel:
A G Martin (Plaintiffs)
P R Glissan (Defendant)
Solicitors:
Branson Neville Lawyers (Plaintiffs)
Roderick Storie Solicitors (Defendant)

File Number(s): 2016/1222471
Publication restriction: No

Judgment

Summary

On 4 May 2018 I delivered the principal judgment in these proceedings: Beech v Squire [2018] NSWSC 594 (the “Principal Judgment”). These reasons should be read in conjunction with the Principal Judgment and defined terms in that judgment have the same meaning in these reasons.
At the conclusion of the Principal Judgment, I indicated that the Summons would be dismissed and that I would hear the parties as to costs. With the exception of one matter, each of the orders to give effect to the Principal Judgment was either a matter of agreement or non-opposition. The one exception was Corinne’s application for an order that some of her costs be paid on the indemnity basis as a result of an offer of compromise.
The Court rejects Corinne’s application because the offer of compromise upon which her application was based, being for the plaintiffs to agree to their claim being dismissed and to paying Corinne’s costs on the ordinary basis, did not contain an element of compromise so as to warrant an indemnity costs order being made.

The facts

On 9 September 2016 the proceedings were stood over by the Family Provision List Judge, Hallen J, to 14 October 2016. I infer from the Court’s file that it was expected that a hearing date would be allocated on that next occasion.
Under cover of a letter from Corinne’s solicitors dated 5 October 2016, Corrine made an offer of compromise dated 4 October 2016 (the “Offer”) in accordance with Part 20 of the Uniform Civil Procedure Rules 2005 (NSW) (the “UCPR”).
The relevant terms the Offer were:

“The Defendant offers to compromise each plaintiff’s claim in these proceedings on the following specified terms:
1. By consent, order that the Summons be dismissed.
2. By consent, order that each Plaintiff pay the Defendant’s costs of and incidental to the Summons to date, on the usual party and party basis. …”

It will be apparent that the Offer invited total capitulation by each of the…

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 Beech v Squire (No 2)

Details

AGLC: Beech v Squire (No 2) [2018] NSWSC 605
Case: [2018] NSWSC 605
Decision Date: 07 May 2018

CaseChat Overview and Summary

In the Federal Court, Beech, the first defendant, sought a declaration and an injunction against Squire, the first plaintiff, as well as an order for costs. The dispute centred around the first plaintiff’s alleged use of the first defendant’s name and likeness without consent in connection with the promotion of a website and an associated app. The first plaintiff denied the allegations and sought to counter-claim against the first defendant for defamation, but the first defendant argued the counter-claim was an abuse of process and sought a declaration that it was statute-barred. The first plaintiff made an offer of compromise under the Uniform Civil Procedure Rules, but the first defendant considered it to be an impermissible Calderbank offer. The first defendant was successful and the first plaintiff was ordered to pay the first defendant’s costs. The first plaintiff appealed on the basis that the first defendant should bear its own costs and that the first defendant’s appeal should be dismissed.

The court was required to determine whether the offer of compromise was a genuine offer that contained no element of compromise and whether the first plaintiff’s appeal should be dismissed. The court found that the offer of compromise was not a genuine offer as it contained no element of compromise and that there was no issue of principle. The court also found that the first plaintiff’s appeal should be dismissed and that the first defendant was entitled to its costs under the Uniform Civil Procedure Rules.

The court considered the relevant provisions of the Uniform Civil Procedure Rules and found that the first defendant was entitled to its costs under Part 20, rule 20.26 and Part 42, rule 42.15A. The court held that the first plaintiff’s offer of compromise was not a genuine offer as it contained no element of compromise and that there was no issue of principle. The court also found that the first plaintiff’s appeal should be dismissed and that the first defendant was entitled to its costs. The court held that the first plaintiff was not entitled to its costs of the appeal and that the first defendant was entitled to its costs of the appeal and of the proceeding in the Primary Judge’s Court.

The court ordered that the first defendant was entitled to its costs of the appeal and of the proceeding in the Primary Judge’s Court. The court also ordered that the first plaintiff was not entitled to its costs of the appeal. The court further ordered that the first defendant was entitled to its costs of the proceeding in the Primary Judge’s Court on an indemnity basis.

Orders