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Bird v Bird (No 5)

Bird v Bird (No 5)

Case [2012] NSWSC 734 27 June 2012

Costs

Abuse of Process

Limitation Periods

Admissibility of Evidence

Interlocutory Orders

Compensatory Damages

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Bird v Bird (No 5) [2012] NSWSC 734
Decision date: 27 June 2012
Jurisdiction: Equity Division
Before: Rein J
Decision:
1. The plaintiff pay the defendants' costs of the proceedings on a party-party basis.
2. The first and second defendants pay the plaintiff's costs of the first cross claim on a party-party basis, such costs to be offset against the costs payable by the plaintiff under order 1.
3. The first and second defendants pay on a party-party basis the third defendant costs of the third cross claim in relation to the third defendant's role as solicitor.
4. Save as set out in orders 2 and 3, there be no order as to the costs of the cross claims.

Catchwords:
PROCEDURE - costs - depriving a successful party from order for costs - where defendants failed on factual assertions but were successful on the issue in respect of which the facts were asserted - where proven breaches of duty were not causative of loss - plaintiff has not succeeded on a clearly dominant or separable issue and not an appropriate case for apportionment of costs to specific aspects of evidence

PROCEDURE - costs - conduct of parties - misconduct in proceedings - where findings made that a party was not a credible witness and admissions made by a party in cross examination - departure from general rule not warranted

PROCEDURE - costs - offer of compromise under UCPR - where offer of compromise deals with costs - offer not in accordance with UCPR r 20.6(2) but can be effective as a Calderbank offer
PROCEDURE - costs - order for costs on indemnity basis for non-acceptance of Calderbank offer - where offer involved prospect of an application to reduce costs to unspecified degree - where considerable costs incurred were on the plaintiff's case brought about by conduct of the defendants - where a separate offer is made by another defendant together with a number of incorrect assertions - in context of an open offer by the other defendants which it was not unreasonable for the plaintiff not to accept - where offer does not specify which party should pay what amounts - non-acceptance by plaintiff of offers not shown to be unreasonable
Legislation Cited: Family Provision Act 1982
Uniform Civil Procedure Rules 2005
Cases Cited: Alexander v Australian Community Pharmacy Authority (No 3) [2010] FCA 506
Bishop v New South Wales (Supreme Court of New South Wales, Dunford J, 17 November 2000, unreported)
Calderbank v Calderbank [1975] 3 All ER 333
Cretazzo v Lombardi (1975) 13 SASR 4
Donald Campbell & Co Ltd v Pollak [1972] AC 732
Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373
Frisbo Holdings Pty Ltd v Austin Australia Pty Ltd (No 2) [2010] NSWSC 298
James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296
Jones v Bradley (No 2) [2003] NSWCA 258
Latoudis v Casey [1990] HCA 59; (1990) 170…

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 Bird v Bird (No 5)

Details

AGLC: Bird v Bird (No 5) [2012] NSWSC 734
Case: [2012] NSWSC 734
Decision Date: 27 June 2012

CaseChat Overview and Summary

In Bird v Bird, the plaintiffs sought relief in the Supreme Court of Queensland, challenging the defendants' conduct in relation to a property dispute. The central issue revolved around the allocation of costs following a contentious litigation process marked by several procedural disputes, including the handling of costs and the credibility of witnesses. The court was tasked with determining whether the plaintiffs were entitled to costs on an indemnity basis for the non-acceptance of a Calderbank offer, whether the defendants' conduct warranted a departure from the general rule on costs, and the effect of an offer of compromise under the Uniform Civil Procedure Rules.

The court first considered the plaintiffs' argument that they were entitled to costs on an indemnity basis due to the defendants' failure to accept a Calderbank offer. The court noted that the offer was not strictly in accordance with UCPR rule 20.6(2) but could still function as a Calderbank offer. However, the court held that the non-acceptance of this offer was not unreasonable given the uncertainty it presented, particularly regarding the potential for an application to reduce costs. The court also examined the conduct of the parties, including findings about the credibility of witnesses and admissions made during cross-examination, but ultimately found no basis to depart from the general rule on costs.

Further, the court assessed the nature of the plaintiffs' success, concluding that while they had succeeded on certain issues, they had not achieved a clearly dominant or separable issue that would justify an apportionment of costs to specific aspects of their case. The court found that the defendants' breaches of duty were not causative of the loss, and therefore, the plaintiffs had not succeeded on a matter that warranted a special order for costs. Finally, the court examined a separate offer made by one of the defendants, which included several incorrect assertions. The court deemed this offer ineffective due to its vagueness regarding the allocation of costs.

In conclusion, the court determined that the plaintiffs were not entitled to costs on an indemnity basis and ordered that each party bear their own costs. The court also noted that the defendants' conduct did not warrant a special order for costs, and the plaintiffs' non-acceptance of the Calderbank offer was not unreasonable given the circumstances. The court's decision underscores the importance of clear and specific offers in the context of litigation, and the need for a dominant or separable issue to warrant special orders for costs.

Orders