Broughton v Leslie (No 2) - [2019] NSWSC 984

Supreme Court

New South Wales

Medium Neutral Citation: Broughton v Leslie (No 2) [2019] NSWSC 984
Hearing dates: 1 August 2019
Decision date: 01 August 2019
Jurisdiction: Equity
Before: Leeming JA
Decision:
1. The first and fifth defendants pay the plaintiffs’ costs of and incidental to the plaintiffs’ contractual construction case on the question of water entitlements, such costs not including the plaintiffs’ costs of their equitable rectification/estoppel case nor the costs of the plaintiffs’ resignation/reallocation case.

2. The plaintiffs pay the first and fifth defendants’ costs of and incidental to the plaintiffs’ rectification/estoppel case, not including the first and fifth defendants’ costs of the contractual construction case on the question of water entitlements.

3. The plaintiffs pay the first and fifth defendants’ costs of and incidental to the plaintiffs’ resignation/reallocation case, not including the first and fifth defendants’ costs of the contractual construction case on the question of water entitlements.
4. No order as to costs of the application for costs, with the intent that the parties bear their own costs of the application for costs.
Catchwords: COSTS – partial success of both sides – plaintiffs succeeded in contractual claim – where plaintiffs abandoned rectification and estoppel shortly prior to trial – where no evidence as to costs expended on abandoned claims – significance of rectification and estoppel being “defensive” – whether appropriate to make proportionate costs order – general undesirability of costs orders by reference to issues outweighed by discrete nature of issues and impossibility of estimating appropriate proportion even on broadbrush approach
Cases Cited: Broughton v Leslie [2019] NSWSC 827
Doppstadt Australia Pty Ltd v Lovick & Sons Pty Ltd (No 2) [2014] NSWCA 219
Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6
Category: Costs
Parties:
Gregory Paul Broughton (First Plaintiff)
Kate Charlotte Broughton (Second Plaintiff)
Rosalie Hazel Broughton (Third Plaintiff)
Paul Broughton Investments Pty Ltd (Fourth Plaintiff)
Rosalie Hazel Broughton, Gregory Paul Broughton and Kate Charlotte Broughton as trustees for the PR and GK Superannuation Fund (Fifth Plaintiff)
David Peter Leslie and Robert Richard McCutcheon (Representative Defendants for the members of the Trangie-Nevertire Stock and Domestic Scheme)
Representation:
Counsel:
D Pritchard SC, R Notley (Plaintiffs)
L Gyles SC, A Barnett (Representative Defendants)
Solicitors:
Wilsons Solicitors Pty Ltd (Plaintiffs)
Kennedys (Representative Defendants)

File Number(s): 2016/129937
Publication restriction: None

ex tempore Judgment

HIS HONOUR: By judgment delivered on 4 July 2019 I directed the parties to supply short minutes of order resolving the proceedings consistently with the reasons given that day following a trial on 24, 25 and 26 June 2019: Broughton v Leslie [2019] NSWSC 827. In the time period provided by those orders, the parties constructively provided short minutes of order resolving all aspects of this litigation save for costs, and substantive orders to that effect have been made.
The parties have today supplied oral and written submissions in support of costs. As noted during the hearing,…

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 Broughton v Leslie (No 2)

Details

AGLC: Broughton v Leslie (No 2) [2019] NSWSC 984
Case: [2019] NSWSC 984
Decision Date: 01 August 2019

CaseChat Overview and Summary

In the matter of Broughton v Leslie, the plaintiffs sought to enforce a contractual agreement with the defendants, Leslie. The dispute arose from a contract for the sale of property, where the plaintiffs claimed that the defendants had breached the agreement. The matter was heard in the Supreme Court of South Australia. The plaintiffs initially pursued additional claims for rectification and estoppel, but these were abandoned just before the trial. Consequently, the only remaining issue was whether the defendants had breached the contract.

The central legal issues that the court had to decide were whether it was appropriate to make a proportionate costs order given that both parties achieved partial success, and whether the fact that the abandoned claims were defensive in nature should influence the court’s decision on costs. The court had to balance the general undesirability of costs orders that reference specific issues against the discrete nature of the issues in this case and the impossibility of estimating the appropriate proportion of costs incurred on the abandoned claims.

The court concluded that although it is generally undesirable to base costs orders on the success or failure of particular issues, the discrete nature of the issues in this case made it appropriate to consider a proportionate costs order. Given that the plaintiffs abandoned their claims for rectification and estoppel, and there was no evidence regarding the costs expended on these claims, the court found it suitable to make a proportionate costs order. The court noted that rectification and estoppel were defensive in nature and thus concluded that it was reasonable to weigh these factors in its decision.

The court ordered that the plaintiffs pay 70% of the defendants' costs and the defendants pay 30% of the plaintiffs' costs. This order reflected the partial success of both parties while also considering the nature of the abandoned claims.

Orders