Campbell v Tran (No 2) - [2024] NSWSC 339

Supreme Court

New South Wales

Medium Neutral Citation: Campbell v Tran (No 2) [2024] NSWSC 339
Hearing dates: 25 March 2024
Date of orders: 25 March 2024
Decision date: 25 March 2024
Jurisdiction: Equity
Before: Meek J
Decision:
Orders made for (a) entry of judgment based on findings as to monetary amounts on various claims, (b) pre-judgment interest and (c) costs in a specified gross sum.

Catchwords:
ORDERS — Determination of total amount of judgment sum based on findings in principal judgment regarding various monetary claims
ORDERS — Interest — Claim for pre-judgment interest — Interest allowed
COSTS — Calderbank offer — Principles — Assessment of offer from a mathematical perspective in terms of the value of benefit ultimately derived at a final hearing and from the nature of the relief sought — Indemnity costs refused
COSTS — Indemnity costs sought on basis of defendant’s conduct in allegedly prolonging the proceedings and unsuccessful defence — Indemnity costs refused
COSTS — Specified gross sum sought under s 98(4)(c) of the Civil Procedure Act 2005 (NSW) — Potential for a cost assessment process to be stymied or prolonged in light of foreshadowed application of first defendant to file for her bankruptcy — Specified gross sum allowed and determined
PAYMENT INTO COURT — Request made for the Court to order payment into Court of funds the subject of mortgagee or proposed mortgagee sales — Request declined as plaintiffs’ interests safeguarded by leave to apply in respect of working out of orders and direction to the first defendant to provide contact details for mortgagee contact person

Legislation Cited:
Civil Procedure Act2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Calderbank v Calderbank [1976] Fam 93; [1975] 3 All ER 333
Campbell v Tran [2024] NSWSC 204
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801
FountainSelected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 364; (1998) 81 ALR 397
Hamod v State of New South Wales (No 13) [2009] NSWSC 756
Maestrale v Aspite [2014] NSWCA 182
Parisi v Nigro [2006] NSWCA 121
Wang v Yu(No 2) [2024] NSWSC 4
Wang v Yu (No 3) [2024] NSWSC 190

Texts Cited:
Supreme Court Practice Note SC Gen 16

Category: Costs
Parties: Anthony Campbell (First Plaintiff)
Sherne Alice Campbell (Second Plaintiff)
Monika Thao Than Tran (First Defendant)
Red Sienna Pty Ltd (Second Defendant)
Representation:
Counsel:
M Bennett (Plaintiffs)
Self-represented (First Defendant)
Solicitors:
Bartier Perry Pty Ltd (Plaintiffs)
Self-represented (First Defendant)

File Number(s): 2022/59121

EX TEMPORE JUDGMENT (REVISED)

Introduction

HIS HONOUR: On 6 March 2024, I delivered reasons for judgment in this matter: see Campbell v Tran [2024] NSWSC 204 (principal judgment/PJ). These reasons assume a familiarity with the principal judgment and I will adopt its nomenclature and abbreviations.
The proceedings involved relief sought by the plaintiffs consequent upon the sale of three properties based, they say, and as I have found, upon misleading or deceptive conduct engaged in by Ms…

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 Campbell v Tran (No 2)

Details

AGLC: Campbell v Tran (No 2) [2024] NSWSC 339
Case: [2024] NSWSC 339
Decision Date: 25 March 2024

CaseChat Overview and Summary

In the matter of Campbell v Tran (No 2), the parties involved were the plaintiffs, Campbell, and the defendants, Tran. The dispute involved determining the total amount of the judgment sum based on findings from the principal judgment concerning various monetary claims. Additionally, the court addressed claims for interest, specifically pre-judgment interest, and assessed costs, including indemnity costs. The matter was heard in the Supreme Court of New South Wales.

The legal issues the court needed to decide included the calculation of the total judgment sum, the allowance of pre-judgment interest, and the assessment of costs, particularly whether indemnity costs were warranted given the defendant's conduct. The court had to consider the principles governing Calderbank offers, the mathematical perspective of the benefit derived at the final hearing, and the nature of the relief sought. Furthermore, the court examined the implications of the first defendant's anticipated application for bankruptcy and its potential to stymie or prolong the cost assessment process.

The court determined that the total amount of the judgment sum should be calculated based on the findings from the principal judgment. It allowed the claim for pre-judgment interest, finding it appropriate under the circumstances. Regarding costs, the court refused indemnity costs, considering the nature of the relief sought and the benefit derived from the Calderbank offer. The court also declined to award indemnity costs based on the defendant's conduct, finding that it did not warrant such an award. In light of the first defendant's anticipated bankruptcy application, the court allowed a specified gross sum for costs, ensuring that the cost assessment process would not be unduly prolonged. Finally, the court declined the plaintiffs' request for the court to order payment into court of funds subject to mortgagee or proposed mortgagee sales, as the plaintiffs' interests were adequately safeguarded by the leave to apply concerning the working out of orders and the direction for the first defendant to provide contact details for the mortgagee contact person.

Orders