Boensch v Pascoe - [2010] NSWSC 1172

CITATION: Franz Boensch as trustee for the Boensch Trust v Pascoe [2010] NSWSC 1172

HEARING DATE(S): 13 October 2010

JUDGMENT DATE :
15 October 2010

JUDGMENT OF: Ball J

DECISION: 1. The defendant pay the plaintiff’s costs of the notice of motion filed on 13 July 2010.
2. The plaintiff pay the defendant’s costs of the defendant’s compliance with the orders made on 24 August 2008.
3. The parties otherwise bear their own costs of the proceedings.

CATCHWORDS: COSTS - no order as to costs - compromised proceedings - defendant offered genuine compromise - no reason to depart from general principle. COSTS - exceptions to the general rule that costs follow the event - conduct of parties - whether plaintiff acted unreasonably in proceeding with motion without first making enquiries of the defendant's solicitors - no reason to depart from general rule

LEGISLATION CITED: Real Property Act 1900
Uniform Civil Procedure Rules

CATEGORY: Procedural and other rulings

CASES CITED: ASIC v Rich [2003] NSWSC 297
Re Minister for Immigration & Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622
Steffen v ANZ Banking Corporation Limited [2009] NSWSC 883

PARTIES: Franz Boensch as trustee for the Boensch Trust (Plaintiff)
Scott Darren Pascoe (Defendant)

FILE NUMBER(S): SC 2010/149624

COUNSEL: M J Heath (Plaintiff)
A P Spencer (Defendant)

SOLICITORS: Malcolm Wright (Plaintiff)
Sally Nash & Co (Defendant)

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BALL J

15 OCTOBER 2010

2009/149624 FRANZ BOENSCH AS TRUSTEE FOR THE BOENSCH TRUST v SCOTT DARREN PASCOE

JUDGMENT

1 These proceedings concern an application for preliminary discovery under UCPR r 5.3. The only outstanding questions relate to costs. There are two questions. The first is what costs order should be made in the substantive proceedings. The second is what costs order should be made in relation to a notice of motion filed by the plaintiff to set aside a notice to produce served on him by the defendant.

Costs in substantive proceedings

2 The defendant was appointed the plaintiff’s trustee in bankruptcy in August 2005. Shortly after his appointment, he filed a caveat over property in relation to which the plaintiff was the registered proprietor. The plaintiff contested the defendant’s right to do so on the basis that he held the property as trustee. Ultimately, that issue was resolved in the plaintiff’s favour.

3 On 21 December 2009, the solicitor for the plaintiff wrote to the defendant in the following terms:

“It is my client’s view that you had:

(a) No reasonable cause to lodge the caveat; and

(b) no reasonable cause for failing or refusing to withdraw the caveat when requested to do so on 15 November 2005 by solicitors then acting for the Trust

Real Property Act

Would you please set out the basis on which you maintain you had reasonable cause:

(a) To lodge the caveat; and

(b) For failing…

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 Boensch v Pascoe

Details

AGLC: Boensch v Pascoe [2010] NSWSC 1172
Case: [2010] NSWSC 1172
Decision Date: 15 October 2010

CaseChat Overview and Summary

In Boensch v Pascoe, the plaintiff sought damages for the defendant's alleged breach of contract. The case was heard in the Supreme Court of New South Wales. The defendant, Pascoe, had offered a genuine compromise to settle the proceedings, which the plaintiff, Boensch, did not accept. Instead, Boensch proceeded with a motion without first inquiring with the defendant's solicitors, leading to a dispute over the costs incurred in the proceedings.

The legal issue before the court was whether the plaintiff's conduct in proceeding with the motion without first making inquiries of the defendant's solicitors was unreasonable, and whether this warranted a departure from the general principle that costs follow the event. The court considered whether there were any exceptional circumstances that would justify deviating from the standard rule that the losing party pays the costs of the proceedings.

The court held that the plaintiff's conduct was not unreasonable and did not constitute exceptional circumstances warranting a departure from the general rule. The court emphasised that the defendant had made a genuine offer to compromise the proceedings, and there was no evidence to suggest that the plaintiff's decision to proceed with the motion was motivated by anything other than a genuine belief that it was in their best interests. The court concluded that there was no reason to depart from the general principle that costs follow the event.

Accordingly, the court made no order as to costs. The compromise offered by the defendant was genuine, and the plaintiff's conduct did not warrant a departure from the general rule. The proceedings were compromised, and no party was ordered to pay the costs of the other.

Orders