Crosby v Hanley - [2021] NSWSC 507

Supreme Court

New South Wales

Medium Neutral Citation: Crosby v Hanley [2021] NSWSC 507
Hearing dates: On the papers
Date of orders: 10 May 2021
Decision date: 10 May 2021
Jurisdiction: Equity
Before: Darke J
Decision:
Pursuant to UCPR r 12.1(1)(b) leave is granted to the plaintiffs to discontinue the proceedings. The defendants are ordered to pay one half of the plaintiffs’ costs of the proceedings.

Catchwords:
COSTS – proceedings discontinued – discontinuing party pays costs unless otherwise ordered – whether appropriate to otherwise order – plaintiffs justified in commencing proceedings and almost certain to obtain some relief – defendants not generally unreasonable in defending proceedings – plaintiffs achieved practical success as defendants took steps to remedy the plaintiffs’ complaints – defendants’ change of position not entirely a capitulation but if effected earlier some costs would have been avoided – appropriate to order that defendants pay one half of plaintiffs’ costs

Legislation Cited:
Civil Procedure Act 2005 (NSW) s 30(4)
Uniform Civil Procedure Rules 2005 (NSW) rr 12.1, 42.19

Cases Cited:
Australiawide Airlines Limited v Aspirion Pty Limited [2006] NSWCA 365
Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32
Greaves v CGU Insurance Ltd [2004] NSWSC 912
One Tel Ltd v Commissioner of Taxation (2000) 101 FCR 548; [2000] FCA 270
OPENetworks Pty Ltd v Myport Pty Ltd [2019] FCA 1659
Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin (1997) 186 CLR 622

Category: Costs
Parties: Sally Crosby (First Plaintiff)
Kenneth Crosby (Second Plaintiff)
Jason Hanley (First Defendant)
Samantha Hanley (Second Defendant)
Representation:
Counsel:
Mr P Boncardo (Plaintiffs)
Solicitors:
Campbell Paton & Taylor Solicitors (Plaintiffs)

File Number(s): 2019/208995
Publication restriction: None

Judgment

The plaintiffs commenced these proceedings by Summons filed on 5 July 2019. The plaintiffs sought relief in respect of alleged interferences with their rights under a registered easement. The proceedings continued by way of a Statement of Claim filed on 24 September 2019, in which the relief sought was substantially the same as that within the Summons. The defendants filed a Defence on 14 November 2019. The Defence contains a number of admissions, including that certain locks were placed on gates to the easement, and that various gates and fences were installed in the easement area.
By Notice of Motion filed on 26 February 2021, the plaintiffs seek leave to discontinue the proceedings pursuant to Uniform Civil Procedure Rules 2005 (“UCPR”) r 12.1(1)(b), and an order pursuant to UCPR r 42.19(2) that the defendants pay the plaintiffs’ costs of the proceeding. The defendants seek an order that the plaintiffs pay their costs.
The plaintiffs rely on the affidavit of Sally Crosby affirmed on 26 February 2021. The Court has read this affidavit and the exhibits attached. The Court has also read the plaintiffs’ submissions dated 26 February 2021, the defendants’ undated submissions (received on about 4 March 2021), and the plaintiffs’ submissions in reply dated 22 March 2021.

Background

The parties are registered…

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 Crosby v Hanley

Details

AGLC: Crosby v Hanley [2021] NSWSC 507
Case: [2021] NSWSC 507
Decision Date: 10 May 2021

CaseChat Overview and Summary

The plaintiffs, Crosby, initiated proceedings against Hanley, alleging breaches of contract and seeking relief. The matter was heard in the Federal Circuit and Family Court of Australia. The dispute centred on the interpretation and application of contractual obligations between the parties and the adequacy of the defendants' response to the plaintiffs' complaints.

The central legal issue for the court was whether, in the circumstances, it was appropriate to order the defendants to pay one half of the plaintiffs' costs, despite the proceedings being discontinued by the plaintiffs. The court had to weigh the plaintiffs' justification for initiating the proceedings and their likelihood of obtaining some relief against the defendants' conduct in defending the action and their subsequent steps to remedy the plaintiffs' complaints.

In determining the appropriate allocation of costs, the court considered that the plaintiffs were justified in commencing the proceedings and had almost certainly achieved some relief as the defendants had taken steps to address the plaintiffs' complaints. The defendants were not generally unreasonable in defending the proceedings, but their change of position, while not entirely a capitulation, indicated that if they had acted sooner, some costs could have been avoided. Given these factors, the court found it appropriate to order that the defendants pay one half of the plaintiffs' costs.

The final orders of the court were that the defendants were to pay one half of the plaintiffs' costs of the proceedings.

Orders