Birch v Glissen Pty Ltd - [2005] NSWSC 337

CITATION:
Birch v Glissen Pty Ltd [2005] NSWSC 337

HEARING DATE(S): 30.03.05

JUDGMENT DATE :

15 April 2005

JURISDICTION:
Equity Division

JUDGMENT OF:
McDougall J at 1

DECISION:
Order that the costs payable pursuant to order (2) made by me in these proceedings on 30 March 2005 be payable on the indemnity basis. Those costs are to include the costs of this application.

CATCHWORDS:
Practice and procedure - costs - indemnity costs - special circumstances - where extension for caveat sought but could not be supported on either existing or amended claim - whether notice of motion subsequently withdrawn - whether indemnity costs ought

LEGISLATION CITED:
Home Building Act 1989
Real Property Act 1900

CASES CITED:
Depsun Pty Ltd v Tahore Holdings Pty Ltd (1990) 5 BPR 11314
Oshlack v Richmond River Council (1998) 193 CLR 72
Harrison v Schipp [2001] NSWCA 13
NMFM Property Pty Ltd v Citibank Ltd [No 11] (2001) 109 FCR 77
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397
White ACT (in liquidation) v G B White & Ors [2004] NSWSC 303

PARTIES:
P: Peter Birch
D: Glissen Pty Ltd

FILE NUMBER(S):
SC 2047/05

COUNSEL:
P: Mr J Johnson
D: Mr AC Iuliano

SOLICITORS:
P: Dennis & Company
D: Colin Biggers & Paisley

LOWER COURT JURISDICTION:

1 HIS HONOUR: The question for decision is whether the costs payable by the plaintiff to the defendant in respect of the plaintiff’s unsuccessful notice of motion for extension of a caveat should be ordered to be paid on the indemnity basis.

2 By his summons filed on 22 March 2005, the plaintiff claimed, relevantly:

“(1) A declaration that in accordance with the terms of be [sic] made between the plaintiff and the defendant dated 21 January 2005 the plaintiff has a relevant estate or interest sufficient to sustain Caveat No: AB 252333.

(2) An order that caveat No. AB 252333 be extended”.

3 By notice of motion filed on the same day, the plaintiff sought, among other things, an interlocutory order extending the caveat.

4 I heard the claim for interlocutory relief on 30 March 2005. On that day, the plaintiff sought and was granted leave to amend prayer 1 of the summons so that it read (for convenience the deleted word is struck through and new words are in bold):

agreements

19 and

(2) An order that caveat No. AB 252333 be extended”.

5 In Schedule 1 of the caveat, the estate or interest claimed by the plaintiff is described as “monies due pursuant to Deed dated 21/1/05”. It is said further that the interest arose by virtue of a Deed dated 21st January made between the defendant and the plaintiff.

6 It is apparent from the Deed of 21 January 2005…

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 Birch v Glissen Pty Ltd

Details

AGLC: Birch v Glissen Pty Ltd [2005] NSWSC 337
Case: [2005] NSWSC 337
Decision Date: 15 April 2005

CaseChat Overview and Summary

The case of Birch v Glissen Pty Ltd involved a dispute over indemnity costs in the context of a property transaction. The parties involved were the plaintiff, Birch, and the defendant, Glissen Pty Ltd, a company involved in the property dealings. The dispute arose when Birch sought to claim costs that were incurred due to the defendant's actions, specifically for the time spent in responding to a caveat that was subsequently withdrawn. The matter was heard in the Supreme Court of Queensland.

The primary legal issue the court had to address was whether the plaintiff was entitled to indemnity costs for the time spent on a caveat that was withdrawn. The court had to consider whether the circumstances were exceptional enough to warrant such costs, given that the caveat was initially supported but later withdrawn. The court also examined whether the notice of motion related to the caveat was withdrawn before the hearing, and how this affected the entitlement to indemnity costs.

The court held that the circumstances did not constitute exceptional circumstances warranting indemnity costs. The plaintiff had sought an extension for the caveat, which was not supported on either the existing or the amended claim. The notice of motion was subsequently withdrawn, and the court found that this withdrawal, coupled with the lack of exceptional circumstances, precluded the plaintiff from being awarded indemnity costs. The court emphasised the need for exceptional circumstances to justify such costs and found that they were not present in this case.

The final orders of the court were that the plaintiff was not entitled to the indemnity costs sought. The court did not award the indemnity costs, affirming that the circumstances did not meet the threshold for such an award.

Orders