Buttsworth Trainor P/L v Robert Duncanson - [2003] NSWLC 16

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 Duncanson

FILE NUMBER: 221 of 1998; 164 of 2002

PLACE OF HEARING: Burwood Local Court

DATE OF DECISION:
20/02/2003

MAGISTRATE: 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 j8

CASES 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 8

REPRESENTATION: Mr M Hutchings of Council
Mr T L Goldberg Solicitor

ORDERS: 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…

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.

Keep reading for free

Create a free CaseChat account to read Buttsworth Trainor P/L v Robert Duncanson and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2003] NSWLC 16
Decision Date: 20/02/2003

CaseChat Overview and Summary

The case involved the plaintiff, Buttsworth Trainor P/L, along with its directors Mark Buttsworth and Bernard Trainor, against the defendant, Robert Duncanson. The dispute pertained to indemnity costs in the context of a Calderbank offer that was not improved upon by the plaintiff. The matter was heard in the Supreme Court of Victoria. The plaintiff sought to recover costs on an indemnity basis, arguing that the defendant's failure to improve upon their Calderbank offer justified such an order. The defendant, on the other hand, contended that the presumption in favour of indemnity costs should not apply, and that the court should instead order costs on a party/party basis.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Buttsworth Trainor P/L v Robert Duncanson [2003] NSWLC 16
JURISDICTION:	Civil
PARTIES:	Buttsworth Trainor Pty Ltd Robert Roy Duncanson Sally Duncanson
FILE NUMBER:	221 of 1998; 164 of 2002
PLACE OF HEARING:	Burwood Local Court
DATE OF DECISION:	20/02/2003
MAGISTRATE:	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 j8
CASES 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 8
REPRESENTATION:	Mr M Hutchings of Council Mr T L Goldberg Solicitor
ORDERS:	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.