Local Court of New South Wales
CITATION: Buttsworth Trainor P/L v Robert Duncanson [2003] NSWLC 16 JURISDICTION: Civil PARTIES: Buttsworth Trainor Pty Ltd
Robert Roy Duncanson
Sally DuncansonFILE NUMBER: 221 of 1998; 164 of 2002 PLACE OF HEARING: Burwood Local Court DATE OF DECISION:
20/02/2003MAGISTRATE: Magistrate CATCHWORDS: Costs against non party - indemnity costs - whether presumption in favour when Calderbank offer not bettered LEGISLATION CITED: Local Court (Civil Claims) Act 1970 s 34
Local Court (Civil Claims) Rules
Part 31A
rule 20
Part 6 rule j8CASES CITED: Multicon Engineering v Federal Airports Corporation (1996) 138 ALR 425
Quirk v Bawden 112 ACTR 1 ACCC v Amcor Printing Papers Group [2000] FCA 163
Sanki Steamship v Sumitomo Australia (Federal Court
7.2.96 unreported)
Grynberg v Muller Estate late M Bilfeld [2002] NSWSC 350
SMEC Testing Services v Campbelltown City Council [2000] NSWSC 323
Norbis v Norbis (1986) 161 CLR 513 at 537
Oshlack v Richmond River Council (1998) 193 CLR 72
Regata v Westpac (unreported) 5.2.93
Davies J Hayes & Associates v Kimberley Clark Australia (1994) 52 FCR 201
AFCO v Tobacco Institute (1991) 100 ALR 586
Baltic Shipping Co v Dillon
(1991) 22 NSWLR 1 Knight v F.P Special Assets (1992) 174 CLR 178
Oz B & S Pty Ltd v Elders IXL Ltd (1993) 117 ALR 128
Yates v Boland [2000] FCA 1895
Dragosavlevic v Serbian Orthodox Church St. Knez Lazar Inc & Ors [2002] ACTSC 19
New South Wales Ministerial Corporation v Edkins (1998) 45 NSWLR 8REPRESENTATION: Mr M Hutchings of Council
Mr T L Goldberg SolicitorORDERS: The Plaintiff and each of Mark Buttsworth and Bernard Trainor pay the defendant's costs of the action, such costs to be on an indemnity basis from 7th October 1999, and on a party/party basis before that date. The plaintiff and Messrs Buttsworth and Trainor to pay the defendant's costs of the application on a party/party basis. In all cases, Plaintiff and Messrs Buttswoth and Trainor to be jointly and severally liable.
Reasons for Decision
The defendants are the applicants for costs on an indemnity basis. Certainly they are generally entitled to a costs order, at least on a party/party basis. They also seek that the order for costs be directed to Mr. Trainor and Mr. Buttsworth personally.
The claim itself was one for surveyors' fees associated with work on a subdivision of the defendants' rural property at Honeyman's Hill Estate near Orange. The plaintiff had a contractual obligation to facilitate the subdivision and in particular to prepare a Development Application. These things it failed to do, largely because Mr. Trainor, who had carriage of the matter for the plaintiff, became ill with a brain tumour. The plaintiff took about twice as long as it should have done to reach the stage where a DA might be obtained, and in the end one was obtained by someone other than the plaintiff. In fact, it was obtained by one Peter Johnson, who was himself a surveyor and whose…
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- Case
- [2003] NSWLC 16
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the presumption in favour of indemnity costs, which arises when a Calderbank offer is not bettered, should be applied in this instance. The court had to consider the principles surrounding Calderbank offers and their implications for costs orders. Additionally, the court examined whether the defendant's failure to improve upon the offer was sufficient to warrant an indemnity costs order, and whether any other factors should influence the costs order. The court needed to balance the principle of encouraging parties to make genuine offers with the need to ensure that costs orders reflect the outcome of the litigation.
The court found that the presumption in favour of indemnity costs did apply when a Calderbank offer was not improved upon. However, the court also considered the overall conduct of the parties and the circumstances of the case. The court held that the presumption was not absolute and could be rebutted if there were exceptional circumstances. In this case, the court determined that while the defendant did not improve upon the Calderbank offer, the overall conduct of the plaintiff and the other named parties warranted a different costs order. The court ordered that the plaintiff and the other parties were to pay the defendant's costs on a party/party basis from a certain date and on an indemnity basis from another specified date. The plaintiff and the other parties were held to be jointly and severally liable for the costs.
The final orders of the court required the plaintiff and each of Mark Buttsworth and Bernard Trainor to pay the defendant's costs of the action, with the costs to be on an indemnity basis from 7 October 1999, and on a party/party basis before that date. The plaintiff and the named individuals were also to pay the defendant's costs of the application on a party/party basis, with all parties being jointly and severally liable for these costs.
Orders
Orders of the court
The Plaintiff and each of Mark Buttsworth and Bernard Trainor pay the defendant's costs of the action, such costs to be on an indemnity basis from 7th October 1999, and on a party/party basis before that date. The plaintiff and Messrs Buttsworth and Trainor to pay the defendant's costs of the application on a party/party basis. In all cases, Plaintiff and Messrs Buttswoth and Trainor to be jointly and severally liable.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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