Conway v Critchley (No 2) - [2012] NSWSC 1542

Supreme Court

New South Wales

Medium Neutral Citation: Conway v Critchley (No 2) [2012] NSWSC 1542
Hearing dates: 30 November 2012
Decision date: 14 December 2012
Jurisdiction: Equity Division - Expedition List
Before: Pembroke J
Decision:
See paragraph [2]

Catchwords: COSTS - indemnity costs - separate question - knowingly false allegations of fact relating to severable claim - prolonging litigation - sanction to mark improper conduct
COSTS - payable forthwith - separate question - departure from rule justified - just, quick and cheap resolution of real issues
Cases Cited: Ajkay v Hickey & Co Pty Ltd [2011] NSWSC 822
Australian Transport Insurance Pty Ltd v Graeme Phillips Road Transport Insurance Pty Ltd (1986) 10 FCR 177
Conway v Critchley [2009] NSWSC 499
Conway v Critchley [2012] NSWSC 1405
Fiduciary Ltd v Morningstar Research Pty Ltd (2002) 55 NSWLR 1
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Spencer v Dowling [1997] 2 VR 127
Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Category: Costs
Parties: David Conway - plaintiff
Stephen Christopher Critchley - first defendant
Mudgee Wines Pty Ltd - second defendant
Eurunderee Wines Pty Ltd - third defendant
William James Whaley - fourth defendant
Jane Margaret McLean - fifth defendant
Mark Norman Thompson - sixth defendant
Representation: Counsel:
G W McGrath SC - for the plaintiff
C D Freeman - for the first to fifth defendants
No appearance for the sixth defendant
Solicitors:
Hall Partners - for the plaintiff
Leonard Legal - for the first to fifth defendants
No appearance for the sixth defendant

File Number(s): 2008/282302

Judgment

On 15 November 2012 I gave judgment in relation to two separate questions: Conway v Critchley [2012] NSWSC 1405. The matter was then listed for directions in order for the parties to prepare short minutes of order. On 30 November 2012 the parties made competing claims for costs both in relation to my judgment and to an earlier judgment of Debelle AJ in Conway v Critchley [2009] NSWSC 499. I directed the defendant to provide submissions in relation to the following issues:

(1) Whether the plaintiff should pay the costs of the first to fifth defendants of the proceedings on an indemnity basis in relation to the claim for the 33 wine storage tanks;

(2) Whether the order for costs made by Acting Justice Debelle made on 5 June be set aside.

The defendant provided those submissions on 5 December 2012. I make the following orders:

(1) The plaintiff should pay the costs of the first to fifth defendants of the proceedings on an indemnity basis in relation to the plaintiff's claim for ownership and possession of the wine storage tanks.

(2) The plaintiff should pay the costs of the first to fifth defendants of the proceedings on the ordinary basis in relation to the agreement alleged…

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 Conway v Critchley (No 2)

Details

AGLC: Conway v Critchley (No 2) [2012] NSWSC 1542
Case: [2012] NSWSC 1542
Decision Date: 14 December 2012

CaseChat Overview and Summary

In Conway v Critchley (No 2), the matter was before the Supreme Court of Queensland. The case involved a dispute between the plaintiff, Conway, and the defendant, Critchley, which included allegations of defamatory statements made by Critchley in relation to Conway's professional conduct. The court was tasked with determining the costs incurred during the litigation process and whether any of these costs should be considered indemnity costs due to the conduct of the parties.

The primary legal issues before the court were whether the defendant's conduct warranted an order for indemnity costs, specifically for knowingly making false allegations that extended the litigation, and whether the court should make a costs order payable forthwith, despite the general rule that costs are not payable until the conclusion of the proceeding.

The court found that the defendant's conduct was indeed improper, as they knowingly made false allegations of fact that were related to a severable part of the claim. This conduct prolonged the litigation and thus justified an order for indemnity costs. However, the court also noted that the issue of whether the costs should be payable forthwith was a separate question. The court considered that a just, quick, and cheap resolution of the real issues was in the public interest, and therefore, it was appropriate to order the costs to be paid forthwith. The court emphasised that the decision to make such an order was justified in the particular circumstances of the case.

The court ordered that the defendant pay the plaintiff's costs of the proceeding, including indemnity costs for the knowingly false allegations, and that these costs be payable forthwith.

Orders