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Chetwynd v Rose (No 2)

Chetwynd v Rose (No 2)

Case [2020] NSWSC 870 7 July 2020

Costs

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Judicial Review

Civil Litigation & Procedure

Property Law

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Supreme Court

New South Wales

Medium Neutral Citation: Chetwynd v Rose (No 2) [2020] NSWSC 870
Hearing dates: On the papers - written submissions 13, 19 and 20 March, 6 May, 7 June and 1 July 2020
Decision date: 07 July 2020
Jurisdiction: Equity
Before: Kunc J
Decision:
See paragraph [5]

Catchwords:
COSTS — Party/Party — Bases of quantification — Factors relevant to the court’s discretion when quantifying costs — Gross sum costs order
COSTS — Party/Party — Bases of quantification — Indemnity basis — Where self-represented plaintiffs properly advised should have understood proceedings likely to fail — Where conduct of self-represented plaintiffs unreasonably lengthened proceedings and complicated issues
COSTS — Party/Party — Orders when proceedings involve multiple parties — How parties liable — Liability as between natural plaintiffs and corporate plaintiff controlled by them
JUDGMENTS AND ORDERS — Interest — Recoverability — Time from which interest is payable — Not limited to when cause of action arose —Factors relevant to court’s discretion — Civil Procedure Act 2005 (NSW), s 100(1)(b)
LAND LAW — Co-ownership — Statutory trust for sale — Order for sale on terms — Adjustments between co-owners before proceeds of sale distributed — Conveyancing Act 1919 (NSW), s 66G

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Conveyancing Act 1919 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Chetwynd v Rose [2020] NSWSC 111
Hamod v State of New South Wales & Anor [2011] NSWCA 375
Jack Brabham Engines Ltd v Beare [2010] FCA 1096
Lemery Holdings Pty Ltd v Reliance Financial Services Pty Ltd [2008] NSWSC 1344; (2008) 74 NSWLR 550
Probiotec Limited v The University of Melbourne [2008] FCAFC 5; (2008) 166 FCR 30
Screenco Pty Ltd v RL Due Pty Ltd [2003] NSWCA 319; (2003) 58 NSWLR 720

Category: Costs
Parties:
Brian Chetwynd (First Plaintiff)
Jill Chetwynd (Second Plaintiff)
Wincot Pty Ltd (Third Plaintiff)
Glynis Rose (Defendant)
Representation:
Counsel:

B Chetwynd (in person, for himself, J Chetwynd and Wincot Pty Ltd) (Plaintiffs)

H Stowe (Defendant)

Solicitors:
Fishburn Watson O’Brien (Defendant)

File Number(s): 2015/223303
Publication restriction: No

Judgment

Summary

The Court delivered its reasons in this matter on 21 February 2020: Chetwynd v Rose [2020] NSWSC 111 (the “Principal Judgment”). This judgment deals with costs and other consequential matters. It assumes familiarity, and should be read, with the Principal Judgment. Defined terms in the Principal Judgment have the same meaning in these reasons.
The Chetwynds have failed in these proceedings, except in relation to two relatively minor matters (the “Minor Matters”). In the Principal Judgment, the Court found, first, that Glynis owes the Chetwynds $15,953 for dividend payments that they should have received but did not, and second, that the Chetwynds are entitled to a declaration that their loan account in the books of Wincot should be adjusted by $53,740 being deducted from Glynis’ loan account and a corresponding credit being made to the Chetwynds’ loan account.
For her part, Glynis has had the vast measure of success in these proceedings. She…

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 Chetwynd v Rose (No 2)

Details

AGLC: Chetwynd v Rose (No 2) [2020] NSWSC 870
Case: [2020] NSWSC 870
Decision Date: 07 July 2020

CaseChat Overview and Summary

Chetwynd v Rose (No 2) involved a dispute between Chetwynd and Rose concerning the sale of jointly owned property and the subsequent distribution of proceeds. The matter was heard in the Supreme Court of New South Wales. The self-represented Chetwynds sought to sell the property under the terms of a statutory trust for sale, while Rose, the other co-owner, opposed the sale. The court had to decide on several legal issues, including the appropriate basis for quantifying costs, the recoverability of interest on the judgment debt, and the distribution of proceeds from the sale of the jointly owned property.

The court considered the factors relevant to its discretion in quantifying costs on a party/party basis, including the likelihood of success of the proceedings and the conduct of the parties. It found that the self-represented Chetwynds should have understood that their proceedings were likely to fail and that their conduct unreasonably lengthened the proceedings and complicated the issues. Consequently, the court ordered the Chetwynds to pay the costs on an indemnity basis. The court also examined the liability for costs between the natural plaintiffs and the corporate plaintiff controlled by them, determining that the natural plaintiffs were liable for the costs.

Regarding the recoverability of interest, the court exercised its discretion under the Civil Procedure Act 2005 (NSW), section 100(1)(b), and determined that interest was payable from the time of the judgment, not just from when the cause of action arose. The court considered various factors in exercising its discretion, ultimately deciding that interest should accrue from the date of the judgment. Finally, the court made an order for the sale of the jointly owned property on terms, allowing for adjustments between the co-owners before distributing the proceeds, in accordance with the Conveyancing Act 1919 (NSW), section 66G.

Orders