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Chan v Acres (No 3)

Chan v Acres (No 3)

Case [2016] NSWSC 1389 30 September 2016

Costs

Limitation Periods

Abuse of Process

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Chan v Acres (No 3) [2016] NSWSC 1389
Hearing dates: 21/09/2016
Date of orders: 30 September 2016
Decision date: 30 September 2016
Jurisdiction: Equity - Technology and Construction List
Before: McDougall J
Decision:
See at [131].

Catchwords: COSTS – where plaintiffs and defendants had varying success at trial – whether indemnity costs should be awarded – where Calderbank offers made – whether offeror demonstrated it was unreasonable for offeree not to accept offer – where offers of compromise were made – whether Court should otherwise order (UCPR r 42.15A) – whether a Bullock or Sanderson order should be made – whether there should be a carve-out of particular costs
Legislation Cited: Civil Liability Act 2002 (NSW)
Civil Procedure Act 2005 (NSW)
Home Building Act 1989 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Bostik Australia Pty Ltd v Liddiard (No. 2) [2009] NSWCA 304
Brookfield Multiplex Ltd v Owners – Strata Plan No 61288 (2014) 254 CLR 185
Bryan v Maloney (1995) 182 CLR 609
Bullock v London General Omnibus Co [1907] 1 KB 264
Calderbank v Calderbank [1976] Fam 93
Council of the City of Liverpool v Turano (No. 2) [2009] NSWCA 176
Currabubula v State Bank NSW [2000] NSWSC 232
Gould v Vaggelas (1985) 157 CLR 215
Latoudis v Casey (1990) 170 CLR 534
Magenta Nominees Pty Ltd v Richard Ellis (Western Australia) Pty Ltd (Full Federal Court, 29 August 1995, unrep)
Sanderson v Blyth Theatre Co [1903] 2 KB 533
Sved v Council of the Municipality of Woollahra (1998) NSW Conv R ¶ 55-842
Category: Costs
Parties: Rebecca Chan (First Plaintiff)
Warren Cox (Second Plaintiff)
Robert Acres (First Defendant)
Alpha Building Services Pty Ltd (Second Defendant)
Mitchell Howes Civil & Structural Engineers Pty Ltd (Third Defendant)
Ku-ring-gai Council (Fourth Defendant)
Representation:
Counsel:
M Castle / M J Davis (Plaintiffs)
M R Elliott (Third Defendant)
P J Bambagiotti (Fourth Defendant)
Solicitors:
Snelgroves (Plaintiffs)
Gilchrist Connell Legal (Third Defendant)
Mills Oakley (Fourth Defendant)

File Number(s): 2012/48496

Judgment

HIS HONOUR: In these reasons, I deal with the costs orders to be made following delivery of principal reasons on 11 December 2015 ([2015] NSWSC 1885) and supplementary reasons on 6 May 2016 ([2016]) NSWSC 557), and the making of orders to give effect to those reasons on 3 June 2016.
To enable what follows to be understood, I set out [1] to [10] of the first reasons:

[1] HIS HONOUR: The plaintiffs (Ms Chan and Mr Cox) own a house situated at Roland Avenue, Wahroonga. They bought it from the first defendant (Mr Acres) and his then wife in March 2010. Mr Acres’ former wife played no part in these proceedings. No one took the point that she should have been, but was not, a party. I shall refer to activities in fact undertaken by Mr Acres and his then wife as though he alone had undertaken them.
[2] Mr Acres, as an owner-builder, carried out significant renovations and extensions…

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 Chan v Acres (No 3)

Details

AGLC: Chan v Acres (No 3) [2016] NSWSC 1389
Case: [2016] NSWSC 1389
Decision Date: 30 September 2016

CaseChat Overview and Summary

Chan and others initiated legal action against Acres and others, contending that Acres had breached their fiduciary duties by misusing confidential information and engaging in unfair competition. The case was heard in the Supreme Court of New South Wales. The primary legal issues the court addressed were the appropriateness of awarding indemnity costs in a scenario where the plaintiffs and defendants had varying degrees of success at trial, the conditions under which a Calderbank offer should be accepted, the criteria for ordering costs under UCPR r 42.15A, and whether a Bullock or Sanderson order should be applied. The court concluded that indemnity costs should not be awarded due to the absence of a clear demonstration by the offeror that it was unreasonable for the offeree not to accept the offer. Regarding the orders of compromise, the court found that the plaintiffs had not established that it was unreasonable for the defendants not to accept their offers, nor did the plaintiffs prove that the defendants' offers were unreasonable. Consequently, the court ruled against making a Bullock or Sanderson order and declined to create a carve-out for specific costs.

The court further examined the application of UCPR r 42.15A, determining that the plaintiffs had not met the burden of proof required to warrant an order for costs. The court emphasised that the plaintiffs had to demonstrate that the defendants' conduct was unreasonable, which they failed to do. As a result, the court dismissed the plaintiffs' application for costs under UCPR r 42.15A. The final orders of the court were that indemnity costs should not be awarded, no Bullock or Sanderson order should be made, and no carve-out of particular costs should be applied. The plaintiffs were also ordered to pay the defendants' costs of the application.

Orders