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Edwards v Stocks

Edwards v Stocks

Case [2009] TASSC 11 3 March 2009

Costs

Limitation Periods

Breach of Contract

Civil Litigation & Procedure

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[2009] TASSC 11

CITATION: Edwards v Stocks [2009] TASSC 11

PARTIES:  EDWARDS, Andrew Harold
  ELLWOOD, David George
  v

STOCKS, Terence Ian
STOCKS, Gail Maree
RETIREMENT BENEFITS FUND BOARD (THE)

TITLE OF COURT:                   SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION:  APPELLATE
FILE NO/S:  278/2007
DELIVERED ON:  3 March 2009
DELIVERED AT:  Hobart
HEARING DATE:  18 November 2008
JUDGMENT OF:  Crawford CJ, Slicer and Blow JJ

CATCHWORDS:

Procedure – Costs – Departing from the general rule – Conduct of parties – Conduct tending to litigation – Third party proceedings – Real fight between plaintiffs and third parties – Plaintiff sued defendant for damages for negligent misrepresentations made without authority by the third parties as its agent – Action failed because of limitation defence – Whether plaintiffs and not the defendant should be ordered to pay the costs of the third parties.

Johnson v Ribbins [1977] 1 WLR 1458; Edginton v Clark [1964] 1 QB 367; Thomas v Times Book Company Ltd [1966] 1 WLR 911; Gladstone Park Shopping Centre Pty Ltd v Wills (1984) 6 FCR 496; Harnett v Vise (1880) 5 Ex D 307; Bostock v Ramsey Urban District Council [1900] 2 QB 616, referred to.
Aust Dig Procedure [575]

Procedure – Costs – Departing from the general rule – Other cases – Relevance of impecuniosity of a party.
Yilan v Minister for Immigration and Multicultural Affairs [1999] FCA 1212; Hollier v Australian Maritime Safety Authority (No 2) [1998] FCA 975; Scott v Secretary, Department of Social Security [2000] FCA 1450; Board of Examiners v XY [2006] VSCA 190; Mayer v Harte [1960] 2 All ER 840; Vucadinovic v Lombardi [1967] VR 81; Barradine Pty Ltd v Westworld Holdings Pty Ltd [1988] 1 Qd R 498; Johnson v Ribbins [1977] 1 WLR 1458, referred to.
Aust Dig Procedure [601]

REPRESENTATION:

Counsel:
           Appellants:  S Tatarka
           First Respondent:  In person
           Second Respondent:  No appearance
           Third Respondent:  S P Estcourt QC
Solicitors:
           Appellants:  Deacons
           First and Second Respondents:              In person
           Third Respondent:  Dobson Mitchell & Allport

Judgment Number: [2009] TASSC 11
Number of paragraphs: 29

Serial No 11/2009
File No 278/2007

ANDREW HAROLD EDWARDS and DAVID GEORGE ELLWOOD
v TERENCE IAN STOCKS, GAIL MAREE STOCKS and
THE RETIREMENT BENEFITS FUND BOARD

REASONS FOR JUDGMENT FULL COURT

CRAWFORD CJ
SLICER J
BLOW J

3 March 2009

Orders of the Court

That orders 1, 2, 3 and 5 made in action 1051/1992 on 28 May 2007 be set aside, and the following orders substituted:

(i)That the action is dismissed.
(ii)That the defendant's claim against the first and second third parties is dismissed.
(iii)That the first and second third parties pay the defendant's costs of and incidental to the action and the third party proceedings against them, but excluding any costs occasioned by the joinder of the third third party.
(iv)That the plaintiffs pay the first and second third parties' costs of and incidental to the action and the third party proceedings.
(v)That the plaintiffs indemnify 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 Edwards v Stocks

Details

AGLC: Edwards v Stocks [2009] TASSC 11
Case: [2009] TASSC 11
Decision Date: 3 March 2009

CaseChat Overview and Summary

In the case of Edwards v Stocks, the plaintiff, Edwards, sued the defendant, Stocks, for damages arising from alleged negligent misrepresentations. These misrepresentations were purportedly made by third parties acting as Stocks' agent, but without any authority. The plaintiff's action against Stocks was unsuccessful, primarily due to a defence of limitation raised by Stocks. In light of this outcome, the court was tasked with determining the appropriate allocation of costs between the parties involved, particularly in relation to the costs incurred by the third parties.

The central legal issue before the court was whether the plaintiffs, Edwards, should bear the costs of the third parties, given that the primary dispute was between the plaintiffs and the third parties. The court considered whether the conduct of the plaintiffs had tended to litigation and whether the plaintiffs should be held responsible for the costs incurred by the third parties as a result of the proceedings. This involved examining the nature of the relationship between the plaintiffs and the third parties, and whether the plaintiffs' actions contributed to the litigation.

The court deliberated on the conduct of the plaintiffs and whether it had a tendency to litigation. The court found that the primary conflict was between the plaintiffs and the third parties, not between the plaintiffs and Stocks. Given that the third parties were not parties to the proceedings against Stocks, the court concluded that the plaintiffs, rather than Stocks, should bear the costs of the third parties. The court reasoned that the plaintiffs' actions in pursuing the third parties, despite the lack of authority, contributed to the litigation and warranted the imposition of costs against them.

Accordingly, the court ordered that the plaintiffs, Edwards, should pay the costs of the third parties. This decision reflects the court's view that the primary dispute was between the plaintiffs and the third parties, and that the plaintiffs' conduct had a tendency to litigation. The court's ruling ensures that the financial burden of the litigation is appropriately allocated between the parties involved.

Orders