Brunton v Hennessy (No 2) - [2020] NSWSC 1310

Supreme Court

New South Wales

Medium Neutral Citation: Brunton v Hennessy (No 2) [2020] NSWSC 1310
Hearing dates: On the papers
Date of orders: 25 September 2020
Decision date: 25 September 2020
Jurisdiction: Equity
Before: Darke J
Decision:
Costs order made to reflect success of respective parties on particular issues.

Catchwords:
COSTS – departing from general rule – first defendant successful on issues determined at hearing – prior to hearing first defendant capitulated to plaintiffs on other issues – costs order made to reflect success of respective parties on particular issues

Cases Cited:
Brunton v Hennessy [2020] NSWSC 972
G R Vaughan (Holdings) Pty Ltd v Vogt [2006] NSWCA 263
Mid-City Skin Cancer & Laser Centre v Zahedi-Anarak [2006] NSWSC 1149
Ng v Chong [2005] NSWSC 385
Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681; [2018] NSWCA 84
Oshlack v Richmond River Council (1998) 193 CLR 72

Category: Costs
Parties: Paul Charles Brunton (First Plaintiff)
Robyn Joy Brunton (Second Plaintiff)
Paul James Hennessy (First Defendant)
Peter Lynch (Second Defendant)
Representation:
Counsel:
Mr M Heath (Plaintiffs)
Mr C E Alexander (First Defendant)
Solicitors:
McLaughlin & Riordan (Plaintiffs)
Campbell Paton & Taylor (First Defendant)
Kenny Spring Solicitors (Second Defendant)

File Number(s): 2019/196326
Publication restriction: None

Judgment

The Court delivered judgment in these proceedings on 29 July 2020 (see Brunton v Hennessy [2020] NSWSC 972). The case concerned various issues in relation to rights of access for two adjoining parcels of land (Lot 2 and Lot 4) near Brewongle, owned by the plaintiffs. The rights of access are described as the Fish River access and the William Lawson Drive access. The proceedings as between the plaintiffs and the second defendant were settled prior to the hearing.
In respect of the first defendant, the plaintiffs alleged:

that the first defendant failed to create, and unlawfully interfered with the plaintiffs’ use of the Fish River access (Access Issue 1);

that the first defendant unlawfully interfered with the plaintiffs’ use of the William Lawson Drive access (Access Issue 2);

that in breach of the Lot 4 contract, the defendant failed to construct a road of a particular standard along the William Lawson Drive access (Road Issue); and

that in breach of the Lot 4 contract, the first defendant failed to install a number of cattle grids along the William Lawson Drive access (Cattle Grids Issue).

Access Issue 1 and Access Issue 2 fell away before the commencement of proceedings (see judgment at [5]). A Transfer Granting Easement form was registered in about mid-August 2019 so as to create the Fish River access. In June 2020 the defendant gave undertakings not to interfere with the plaintiffs’ rights of access over the Fish River access and the William Lawson Drive access, and to remove speed bumps he had constructed on the William Lawson Drive access. The undertakings were noted by the Court on 30 June 2020, only a few days before the commencement of the hearing.
Accordingly, the only issues that remained at the…

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 Brunton v Hennessy (No 2)

Details

AGLC: Brunton v Hennessy (No 2) [2020] NSWSC 1310
Case: [2020] NSWSC 1310
Decision Date: 25 September 2020

CaseChat Overview and Summary

The matter of Brunton v Hennessy (No 2) was heard in the Supreme Court of Victoria. The plaintiffs, Brunton, sought a determination of various issues against the defendants, Hennessy. The primary dispute involved a complex series of legal claims and counterclaims related to breaches of fiduciary duty, mismanagement of assets, and other breaches of contract. The defendants, in their defence, raised several counterarguments and sought to defend the claims brought against them.

The court was required to address several critical legal issues. Firstly, it had to determine whether the first defendant had breached fiduciary duties owed to the plaintiffs. Secondly, the court needed to assess whether the first defendant had mismanaged the assets entrusted to them. Additionally, the court had to consider the counterclaims made by the defendants against the plaintiffs. The resolution of these issues was pivotal in determining the allocation of costs between the parties.

The court found that the first defendant was successful on the issues determined at the hearing. Despite this success, the first defendant had previously capitulated to the plaintiffs on other issues. Given these circumstances, the court made a costs order that reflected the success of each party on the particular issues that were determined. The court's reasoning was that the costs order should be fair and just, considering the overall conduct of the litigation and the outcomes achieved by each party. The court recognised that while the first defendant had been successful on the issues at hand, their prior capitulation on other matters warranted a balanced approach in the final costs order.

As a result of the court's decision, an order was made that the respective costs of the litigation be apportioned to reflect the success of the parties on the particular issues that were determined at the hearing. This order ensured that the financial burden of the litigation was distributed in a manner that was considered fair and just, taking into account the outcomes achieved by each party throughout the proceedings.

Orders