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D Capital 2 Pty Ltd v Western (No 2)

D Capital 2 Pty Ltd v Western (No 2)

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Case Copied 23 September 2022 84 min read

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: D Capital 2 Pty Ltd v Western (No 2) [2022] NSWSC 1283
Hearing dates: 26 August 2022; Further submissions 29, 30, 31 August 2022, 2, 5 September 2022
Decision date: 23 September 2022
Jurisdiction: Equity - Real Property List
Before: Meek J
Decision:
See final paragraph of judgment

Catchwords:
PRACTICE — Direction for parties to bring in proposed short minutes of order to give effect to the reasons for judgment — Various sets of proposed orders — Duty of practitioners to assist Court to present materials to the Court in a form which clearly identifies to the judge the orders that are agreed and a concise listing of the outstanding disputed issues.
PRACTICE — Sets of submissions provided by each of parties in evolving circumstances leading to refinement of some issues and abandonment of other issues — Duty of practitioners to assist Court to clearly identify which submissions are ultimately relied upon without Court being left to task of attempting to identify whether there are remnants of matters still contended for in earlier submissions
ORDERS — Inadvertent mistake by solicitor including reference to an individual party as being jointly liable to pay a costs order payable by a corporation — No dispute that mistake inadvertent — Order opposed by other parties who seeks nonetheless to make individual jointly liable — Inadvertent mistake falls within the concept of the order being "irregularly" for purposes of r 36.15 Uniform Civil Procedure Rules 2005 (NSW) — Order set aside
PRACTICE — cases of inadvertent mistake are quintessentially an occasion for parties and legal representatives to reflect upon their duties to the Court to assist the Court to further the overriding purpose of facilitating a just, quick and cheap resolution of the real issues in the proceedings
COSTS — Claims for indemnity costs — Principles — No real compromise — Reasons to order otherwise
COSTS — Claims for third party costs orders that third-party indemnify other parties for costs of corporate entity — Claims based on Knight v FP Special Assets Ltd (1992) 174 CLR 178; [1992] HCA 28 — An agreement in place for security for costs is a relevant consideration to claims for sole director shareholder to indemnify other parties for costs of corporate entity
EVIDENCE — Notice to Admit Facts — Request framed that plaintiff was not ready, willing and able to complete contracts — Complicated question involving consideration of many facts and pieces of evidence and informed by principles of law and construction of documents — Practitioners ought to reflect upon utility of seeking admission of ‘facts’ on what are essentially multifaceted ultimate issues
SECURITY FOR COSTS — Requests by parties for directions to release funds held pursuant to agreement for security for costs — No basis for interfering with or cutting across the terms of the agreement between the parties
ORDERS — Post judgment claim pursuant to r 36.1 Uniform Civil Procedure Rules 2005 (NSW) by single vendor…

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.

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Details

Case: [2022] NSWSC 1283
Decision Date: 23 September 2022

CaseChat Overview and Summary

The matter before the court involved a dispute between D Capital 2 Pty Ltd and Western, with the case being heard in the Supreme Court of New South Wales. The primary dispute centred around various contractual obligations, costs, and security arrangements, with multiple issues evolving over the course of the proceedings. The case required the court to address several legal issues, including the interpretation of proposed short minutes of order, the handling of inadvertent mistakes in legal submissions, the appropriateness of indemnity costs, third-party cost orders, and the utility of notice to admit facts in complex litigation.

The court focused on the duty of legal practitioners to assist the court in presenting clear and concise materials that accurately reflect the current state of the litigation. In terms of proposed orders, the court emphasised that practitioners should ensure that the orders presented are clearly delineated from those that remain disputed, avoiding confusion and unnecessary work for the court. Regarding inadvertent mistakes, the court held that such errors fell within the concept of an "irregular" order under Rule 36.15 of the Uniform Civil Procedure Rules 2005 (NSW), allowing for the correction of such errors to ensure fairness. The court also examined the principles governing indemnity costs, noting that no real compromise had been reached, and thus rejected claims for such costs. Additionally, the court addressed third-party cost orders, considering the existing agreement for security of costs as a relevant factor.

The court's reasoning and outcome were grounded in the overarching principle of facilitating a just, quick, and cheap resolution of the real issues in the proceedings. The court set aside an order that inadvertently included an individual as jointly liable for costs payable by a corporation, reflecting on the importance of practitioners accurately reflecting the parties involved in legal submissions. Furthermore, the court denied claims for indemnity costs and third-party cost orders, emphasising the lack of a real compromise and the relevance of existing agreements for security of costs. The court also cautioned against the utility of seeking admissions of 'facts' on multifaceted ultimate issues, suggesting that such requests may not be as effective as practitioners might hope in complex litigation. Finally, the court declined a post-judgment claim for the return of a deposit by a vendor who had not filed any cross-claim, noting the lack of evidence to explain the vendor's decision not to seek such relief.

Orders