Breen v Clough (No 2) - [2018] NSWSC 158

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Breen v Clough (No 2) [2018] NSWSC 158
Hearing dates: 19 February 2018
Date of orders: 22 February 2018
Decision date: 22 February 2018
Jurisdiction: Equity
Before: Darke J
Decision:
See paragraph [25]

Catchwords: COSTS – departing from general rule that costs follow the event – plaintiffs partially successful at trial – plaintiffs unsuccessful on a substantial aspect of claim – whether that aspect of claim separable – whether various Calderbank offers were unreasonably rejected – whether plaintiffs obtained orders no less favourable than Offer of Compromise
Legislation Cited: Civil Procedure Act 2005 (NSW), s 98(1)
Dividing Fences Act 1991 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 42.14
Cases Cited: Breen v Clough [2017] NSWSC 1681
Bostick Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304
Commonwealth of Australia v Gretton [2008] NSWCA 117
Category: Costs
Parties: Douglas Martin Breen (First Plaintiff)
Tracey Jane Dillon (Second Plaintiff)
Christine Mae Clough (Defendant)
Representation:
Counsel:
Mr C Ireland (Plaintiffs)
Mr D O’Connor with Ms F McNeil (Defendant)
Solicitors:
Koutzoumis Lawyers (Plaintiffs)
Redmond Hale Simpson (Defendant)

File Number(s): 2014/343553
Publication restriction: None

Judgment

Reasons for judgment in this matter, a dispute between neighbours concerning an easement, were given on 5 December 2017 (see Breen v Clough [2017] NSWSC 1681). The Court made orders on that day, including orders requiring the defendant to undertake certain works at her expense in relation to the inclinator the subject of the easement, and provide certain keys to the plaintiffs. The defendant was also ordered to pay damages to the plaintiffs in the sum of $6,000 (see the earlier judgment at [273]).
The parties were unable to agree upon the appropriate order for costs. Pursuant to directions made by the Court, the parties filed written submissions as to costs. The parties also filed affidavits which included evidence of certain settlement offers and some evidence concerning the conduct of the proceedings. At the request of the defendant, the matter was listed for oral submissions on 19 February 2018.
The following brief summary of the submissions reveals a great divergence between the parties as to what the appropriate order for costs should be.
The plaintiffs submitted that they were the successful parties in the proceedings and that costs should follow the event. They further submitted that some of their costs should be paid on an indemnity basis because the defendant unreasonably failed to accept Calderbank offers made on 23 February 2017 and 3 October 2017, and failed to accept an Offer of Compromise made on 15 May 2017 pursuant to Part 20 of the Uniform Civil Procedure Rules 2005 (NSW). The plaintiffs contend that they obtained an order or judgment on their claim that was no less favourable to them than the terms of the offer, such that Uniform Civil Procedure Rules r 42.14 is engaged. If that is so, the plaintiffs would be entitled to indemnity costs from 16 May 2017 unless the Court ordered…

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 Breen v Clough (No 2)

Details

AGLC: Breen v Clough (No 2) [2018] NSWSC 158
Case: [2018] NSWSC 158
Decision Date: 22 February 2018

CaseChat Overview and Summary

The case of Breen v Clough (No 2) involved the plaintiffs, Breen and another, pursuing the defendants, Clough and others, for damages and an account of profits arising from alleged breaches of fiduciary duty. The dispute reached the court after a trial where the plaintiffs achieved partial success but were unsuccessful on a significant aspect of their claim. The matter came before the court to determine the allocation of costs.

The primary legal issues for the court were whether the unsuccessful aspect of the claim was separable from the successful part, and if the plaintiffs had unreasonably rejected various Calderbank offers. Additionally, the court needed to decide whether the plaintiffs had obtained orders no less favourable than the defendants' Offer of Compromise. These issues were crucial in determining whether the plaintiffs should be penalised for their partial success and whether the court should depart from the usual rule that costs follow the event.

In addressing these issues, the court examined the nature of the claims and the outcomes at trial. The court concluded that the unsuccessful aspect of the claim was not separable from the successful one, implying that the plaintiffs could not be considered successful on the whole. Regarding the Calderbank offers, the court found that the plaintiffs had unreasonably rejected certain offers, leading to a penalty in costs. However, the court also considered whether the plaintiffs had obtained orders no less favourable than the Offer of Compromise, which ultimately influenced the final costs order.

The court ordered that the plaintiffs pay the defendants' costs of the appeal and the trial, subject to a 20% reduction due to the partial success. The court found that the plaintiffs' orders were no less favourable than the Offer of Compromise, which led to a further adjustment in the costs order. The outcome reflected the court's consideration of the principles of proportionality in cost awards and the importance of evaluating the totality of the proceedings in determining costs.

Orders