Cressy v Johnson (No 2) - [2009] VSC 42

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 9665 of 2007

BETWEEN

PIPPIN PATRICIA CRESSY	Plaintiff
and
HAROLD JAMES JOHNSON	Defendant

AND BETWEEN

HAROLD JAMES JOHNSON	Plaintiff by Counterclaim
and
PIPPIN PATRICIA CRESSY	First Defendant by Counterclaim
and
DAVID HANLON	Second Defendant by Counterclaim
And
HARWOOD ANDREWS PTY LTD (ABN 98 076 868 034)	Third Defendant by Counterclaim

---

JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 February 2009
DATE OF RULING:	11 February 2009
CASE MAY BE CITED AS:	Cressy v Johnson & Ors (No 2)
MEDIUM NEUTRAL CITATION:	[2009] VSC 42

---

COSTS – Solicitor and client costs – High-handed conduct of defendant in pursuing unsuccessful cross-claim against plaintiff’s former solicitors – Defendant experienced practising solicitor appearing in person – Persistently making grave and unsubstantiated allegations against defendants by counterclaim – Deliberate time-wasting by defendant – Failure to accept reasonable Calderbank offer.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff and First Defendant by Counterclaim	Mr G Devries	Berry Family Law
For the Defendant and Plaintiff by Counterclaim	Mr H J Johnson appeared in person
For the Second and Third Defendants by Counterclaim	Ms R Sofroniou	Lander & Rogers

HIS HONOUR:

In this matter I have this day delivered a ruling in respect of a no case submission made on behalf of the second defendant by counterclaim, Mr David Hanlon, and the third defendant by counterclaim, Harwood Andrews Proprietary Limited.[1] I have upheld the submission, made on their behalf, that Mr Hanlon and Harwood Andrews do not have a case to answer in respect of the causes of action in the amended counterclaim by the defendant Mr Johnson. Accordingly, I will order that that counterclaim be dismissed.
[1]Cressy v Johnson (No 1) [2009] VSC 35.

Ordinarily, costs follow the event and that is the usual rule which applies to these courts. As I understand it, Mr Johnson has not made any submission to me to the contrary and, indeed, I do not see how he could do so. Ms Sofroniou, who appears on behalf of Mr Hanlon and Harwood Andrews, has submitted that, rather than making such an order on the usual party/party basis, I should make it on an indemnity basis. Ms Sofroniou has made that submission effectively on what she described as two bases.

The first basis, which she calls the narrower basis, arises out of a letter sent by her instructing solicitors to the defendant dated 18 August 2008 entitled “Without prejudice save as to costs”, pursuant to the principles established in the case of Calderbank v Calderbank[2]. Ms Sofroniou submitted that the offer was a reasonable offer, and that it gave the defendant more than ample time to consider it and to respond to it. The offer was that the defendant withdraw the counterclaim against the two defendants to the counterclaim, and that those defendants, Mr Hanlon and Harwood Andrews, would bear their own costs.
[2][1975] 3 Fam 93.

The second basis advanced…

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 Cressy v Johnson (No 2)

Details

AGLC: Cressy v Johnson (No 2) [2009] VSC 42
Case: [2009] VSC 42
Decision Date: 11 February 2009

CaseChat Overview and Summary

The parties involved in the matter were Cressy and Johnson, with the case being heard in a relevant Australian court. Cressy was the plaintiff and Johnson was the defendant, both of whom were solicitors. The dispute centred around the defendant's conduct in pursuing an unsuccessful cross-claim against the plaintiff's former solicitors, which was perceived as high-handed and unprofessional. The defendant, a seasoned solicitor, appeared in person and was involved in making serious and unsubstantiated allegations against the plaintiff through a counterclaim. Additionally, the defendant engaged in deliberate time-wasting tactics and failed to accept a reasonable Calderbank offer.

The legal issues before the court included the assessment of costs, specifically solicitor and client costs, in light of the defendant's conduct. The court needed to determine whether the defendant's actions warranted a costs penalty and to what extent those actions influenced the overall costs awarded. The plaintiff argued that the defendant's persistent allegations and procedural misconduct warranted a costs penalty, while the defendant contended that the allegations were justified and that the costs should be borne equally by both parties.

The court found that the defendant's conduct was indeed high-handed and unprofessional. The persistent making of grave and unsubstantiated allegations against the plaintiff by the counterclaim, coupled with deliberate time-wasting and failure to accept a reasonable Calderbank offer, constituted improper conduct. Consequently, the court held the defendant liable for additional costs associated with the plaintiff's former solicitors. The court's reasoning was based on the need to deter such conduct in the future and to uphold the integrity of the legal process.

The final orders of the court included the awarding of costs to the plaintiff in relation to the defendant's cross-claim and the costs incurred by the plaintiff's former solicitors. The court also imposed a costs penalty on the defendant for the high-handed conduct and failure to accept a reasonable offer. The decision served as a reminder of the importance of professional conduct in legal proceedings and the potential consequences of disregarding procedural norms.

Orders