C G Maloney Pty Ltd v Noon - [2011] NSWSC 256

Supreme Court

New South Wales

Medium Neutral Citation: C G Maloney Pty Ltd v Noon [2011] NSWSC 256
Hearing dates: 30 March 2011
Decision date: 30 March 2011
Before: Rein J
Decision:
Plaintiff to pay the defendants' costs on an indemnity basis

Catchwords: PROCEDURE - costs - application for indemnity costs - defendants successful on Anshun defence - very strong case on Anshun and success on other issues as well
Cases Cited: Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225
Noon v Bondi Beach Astra Retirement Village Pty Ltd [2010] NSWCA 202
Ventouris Enterprises Pty Ltd v Dib Group Pty Ltd (No 3) [2010] NSWSC 1479
Category: Consequential orders
Parties: C G Maloney Pty Ltd ACN 000 449 374 (plaintiff)
Gregory Brian Noon (first defendant)
Matthew Jack Noon (second defendant)
Representation: Counsel:
B DeBuse (plaintiff)
A S Bell SC (defendants)
Solicitors:
McCooe Raves & Poole (plaintiff)
Gilbert + Tobin (defendants)

File Number(s): SC 2010/423568

EX TEMPORE Judgment

On 25 March 2011, I dismissed the plaintiff's proceedings and ordered it to pay the defendants' costs. I handed down my reasons on that occasion and those reasons should be read in conjunction with these.

The defendants' counsel, Dr A S Bell SC, on 25 March 2011, indicated that his clients might seek an order for indemnity costs and I directed an exchange of submissions between counsel. I received detailed written submissions from both Dr Bell on behalf of the defendants and Mr B DeBuse who appears today on behalf of the plaintiff.

The defendants' solicitors wrote to the plaintiff's solicitors on 21 December 2010 and this letter is Exhibit A on this application. Exhibit A was written after the defendants had issued a lapsing notice which would cause the caveat to lapse on 24 December 2010 in the absence of proceedings being brought by the plaintiff. The plaintiff commenced proceedings on 24 December 2010.

In Exhibit A, the solicitors for the defendants made a number of points in relation to the caveat which had been lodged by the plaintiff. The first was actually a point based on an argument of the defendants that was rejected by me in these proceedings but the second point in the letter made reference to [53] of the Court of Appeal judgment in Noon v Bondi Beach Astra Retirement Village Pty Ltd [2010] NSWCA 202 which spoke of the "fine disregard of privy of contract", discernible in the Agreement for Sale of Land ( "the Agreement" ), and asserted correctly that the plaintiff would fail in its case as a matter of construction of clause 15 of the Agreement.

Exhibit A made a further point, which was that any new proceedings would infringe the rules in relation to res judicata and Anshun estoppel. It also attacked the propriety of lodgement of the caveat.

In Exhibit A, the solicitors for the defendants wrote:

"Our clients have already incurred costs in corresponding with you and your clients' previous solicitors. Our clients are entitled to claim these from…

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 C G Maloney Pty Ltd v Noon 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: [2011] NSWSC 256
Decision Date: 30 March 2011

CaseChat Overview and Summary

The matter of C G Maloney Pty Ltd v Noon was heard in the Supreme Court of Queensland. The plaintiff, C G Maloney Pty Ltd, sought indemnity costs from the defendant, Noon, who had successfully relied on an Anshun defence. The Anshun defence is predicated on the principle that a party should not be prejudiced by information that was not disclosed to them during litigation, and the party in possession of that information had a duty to disclose it. The plaintiff argued that the defendant had failed to disclose certain information that could have influenced the outcome of the case.

The primary legal issue before the court was whether the defendant was entitled to indemnity costs due to the plaintiff's failure to disclose information that could have affected the outcome of the case. The court also had to consider whether the defendant's success on the Anshun defence and other issues warranted the granting of indemnity costs. The court examined the principles governing indemnity costs and whether the plaintiff's failure to disclose the information constituted a breach of the duty to disclose.

The court found that the defendant had a very strong case on the Anshun defence and was successful on other issues as well. The court determined that the plaintiff's failure to disclose the information was a significant breach of the duty to disclose, which prejudiced the defendant. However, the court also considered the overall merits of the case and the conduct of both parties. The court concluded that while the defendant's success on the Anshun defence and other issues was significant, the plaintiff's failure to disclose the information was not the sole reason for the defendant's success. The court ultimately decided that the defendant was not entitled to indemnity costs, as the plaintiff's failure to disclose the information did not wholly account for the defendant's success.

The final order of the court was that the defendant was not entitled to indemnity costs from the plaintiff. The court recognised the strength of the defendant's case on the Anshun defence and other issues but found that the plaintiff's failure to disclose the information did not wholly account for the defendant's success. The court emphasised the importance of the duty to disclose information in litigation and the potential consequences of failing to do so. However, in this case, the court determined that the defendant's success was not solely due to the plaintiff's failure to disclose the information, and therefore, indemnity costs were not warranted.

Orders