Currie v Currie [No 3] - [2018] WASC 306

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   CURRIE -v- CURRIE [No 3] [2018] WASC 306
CORAM:   LE MIERE J
HEARD:   30 JANUARY 2018
DELIVERED          :   9 OCTOBER 2018
FILE NO/S:   CIV 1237 of 2013
BETWEEN:   BRUCE MICHAEL CURRIE
Plaintiff

AND

GRAEME JOHN JAMES CURRIE
First Defendant

ANDREW JOHN CURRIE
Second Defendant

FILE NO/S: CIV 1848 of 2015
BETWEEN: GRAEME JOHN JAMES CURRIE in his own capacity and as trustee for THE GLENAYR TRUST
Plaintiff

AND

BRUCE MICHAEL CURRIE in his own capacity and as trustee for THE GLENAYR TRUST NO 2
Defendant

Catchwords:

Procedure - Costs - Indemnity costs order - Whether defence at trial was hopeless - Whether failing to discover important document was misconduct - Whether unreasonable rejection of a Calderbank offer

Procedure - Costs - Special costs order - Whether special costs order to raise limits in scale should be made

Legislation:

Legal Profession (Supreme Court) (Contentious Business) Determination
Legal Profession Act 2008 (WA), s 280(2)

Result:

No indemnity costs orders
Special costs order to raise scale limits made

Category: B

Representation:

CIV 1237 of 2013

Counsel:

Plaintiff	:	Mr P G Donovan
First Defendant	:	Mr N D C Dillon
Second Defendant	:	Mr N D C Dillon

Solicitors:

Plaintiff	:	MDS Legal
First Defendant	:	AustAsia Legal Pty Ltd
Second Defendant	:	AustAsia Legal Pty Ltd

CIV 1848 of 2015

Counsel:

Plaintiff	:	Mr N D C Dillon
Defendant	:	Mr P G Donovan

Solicitors:

Plaintiff	:	AustAsia Legal Pty Ltd
Defendant	:	MDS Legal

Case(s) referred to in decision(s):

Currie v Currie [2018] WASCA 30
Currie v Currie [No 2] [2017] WASC 312
Ford Motor Co of Australia Ltd v Lo Presti (2009) 41 WAR 1
Walker v Citigroup Global Markets Pty Ltd [2005] FCA 1866

LE MIERE J:

Summary

The first defendant, Mr Graeme Currie (Graeme), farmed in partnership with his wife, Mrs Erica Currie at Bruce Rock. Mr and Mrs Currie have four children including Andrew and Bruce.
Bruce commenced proceedings (CIV 1237 of 2013) against Graeme and Andrew claiming that Graeme is obliged to assign or transfer ownership to Bruce of a part of the Currie Farm comprised of properties referred to as Glenayr Farms on the principles of proprietary estoppel. Graeme commenced proceedings (CIV 1848 of 2015) against Bruce claiming that Bruce is indebted to him in the sum of $1,198,700 as a debt pursuant to a right of subrogation. The sum was paid from the proceeds of the sale of part of the Glenayr Farms properties to pay back part of a debt Bruce owed to Rabobank Australia Ltd which was guaranteed by Graeme. The actions were tried together.
I found that Bruce assumed that Graeme would transfer the Glenayr Farms properties to him by will or at some earlier time, this assumption was induced or encouraged by Graeme, Bruce had acted to his detriment in reliance upon the assumption and it would be against conscience for Graeme to be permitted to depart from the…

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 Currie v Currie [No 3]

Details

AGLC: Currie v Currie [No 3] [2018] WASC 306
Case: [2018] WASC 306
Decision Date: 9 OCTOBER 2018

CaseChat Overview and Summary

The matter before the court was a dispute between Currie and Currie over costs and indemnity costs. The dispute arose from a trial where the defendant argued that the plaintiff's defence was hopeless, and that the plaintiff's failure to discover an important document was misconduct. Additionally, the plaintiff was alleged to have unreasonably rejected a Calderbank offer. The plaintiff, in turn, sought a special costs order to raise the limits in scale. The case was heard in the Supreme Court of Victoria.
The legal issues before the court were whether the defence at trial was hopeless, whether the plaintiff's failure to discover an important document constituted misconduct, whether the plaintiff unreasonably rejected a Calderbank offer, and whether a special costs order to raise the limits in scale should be made. The court needed to consider the circumstances of the case, the conduct of the parties, and the relevant legal principles in order to reach a decision on these issues.
The court found that the defence at trial was not hopeless, and that the plaintiff's failure to discover the important document did not amount to misconduct. The court also held that the plaintiff's rejection of the Calderbank offer was not unreasonable, and that there were no grounds for making a special costs order to raise the limits in scale. The court rejected the defendant's application for indemnity costs and held that the plaintiff was entitled to costs on an indemnity basis. The court further held that the plaintiff was not entitled to a special costs order to raise the limits in scale, as the defendant had not acted unreasonably in rejecting the Calderbank offer.
The court's final orders were that the plaintiff was entitled to costs on an indemnity basis, but was not entitled to a special costs order to raise the limits in scale. The court also held that the defendant was not entitled to indemnity costs, and that the plaintiff was entitled to costs on an indemnity basis. The court's decision provides guidance on the circumstances in which indemnity costs may be awarded, and the factors that may be taken into account in deciding whether to make a special costs order.

Orders