Egan v Egan (No. 2) - [2018] NSWSC 282

Supreme Court

New South Wales

Medium Neutral Citation: Egan v Egan (No. 2) [2018] NSWSC 282
Hearing dates: 7 March 2018
Decision date: 08 March 2018
Jurisdiction: Common Law
Before: Davies J
Decision:
No order as to costs on either the statement of claim or the cross-claim to the intent that each party should bear her own costs of the proceedings.

Catchwords:
PROCEDURE – costs – claim for possession of land – cross-claim that loan deed and mortgage were a sham, alternatively that they constituted an unjust contract – plaintiff establishes default under mortgage – defendant fails on claim that contract was a sham – contract held to be unjust – contract varied
PROCEDURE - costs – Calderbank offers by both parties – difficulty ascertaining if offerees obtained no better result from judgment – defendant’s offer made before any evidence served – offer said to be open for 21 days – offer withdrawn without warning after 5 days – whether unreasonable of plaintiff not to accept offer – no order for costs
Legislation Cited: Contracts Review Act 1980 (NSW) s 7
Cases Cited: Egan v Egan [2018] NSWSC 202
GIO General Limited v Allen [2002] NSWCA 333
Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd (No. 2) [2008] NSWCA 85
Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344
Category: Costs
Parties: Carolyn Egan (Plaintiff)
Karen Egan (Defendant)
Representation:
Counsel:
D Parish (Plaintiff)
M Tibbey (Defendant)
Solicitors:
Aubrey Brown (Plaintiff)
Brazel Moore Lawyers (Defendant)

File Number(s): 2016/377357
Publication restriction: Nil

Judgment

I gave judgment in this matter on 1 March 2018: Egan v Egan [2018] NSWSC 202 (“the principal judgment”). I directed that the parties were to bring in Short Minutes of Order to reflect my reasons for judgment. I said that I would hear the parties on costs if they were not able to reach agreement on costs in the Short Minutes of Order.
On 7 March 2018 the parties brought in Short Minutes of Order. I made the orders in the agreed document. The parties had not been able to agree on costs. The competing positions of the parties on costs were as follows.
The plaintiff submitted that each party should pay her own costs of the statement of claim but that the defendant should pay the plaintiff’s costs on an indemnity basis in respect of the cross-claim from 24 January 2018. Prior to that date no costs should be paid by one party to another in respect of the cross-claim.
The defendant submitted that the plaintiff should pay the defendant’s costs on an ordinary basis of both the statement of claim and the cross-claim up to 3 May 2017 and thereafter should pay indemnity costs on both the statement of claim and the cross-claim.
The respective dates identified by the parties for the commencement of indemnity costs sought reflected Calderbank offers served by each such party. The plaintiff’s Calderbank letter was dated 23 January 2018 and the defendant’s offer was dated 3…

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 Egan v Egan (No. 2)

Details

AGLC: Egan v Egan (No. 2) [2018] NSWSC 282
Case: [2018] NSWSC 282
Decision Date: 08 March 2018

CaseChat Overview and Summary

The case of Egan v Egan (No. 2) involved a dispute between the plaintiff, who sought possession of certain land, and the defendant, who raised cross-claims asserting that the loan deed and mortgage were a sham, or alternatively, that they constituted an unjust contract. The matter was heard in the Supreme Court of Victoria, where the plaintiff successfully established a default under the mortgage, but the defendant's claims regarding the nature of the mortgage were dismissed. However, the court held that the contract was unjust and ordered that it be varied.

The primary legal issues before the court included whether the defendant's cross-claims regarding the sham nature of the contract or its unjust nature were valid, and if the plaintiff was entitled to costs following the unsuccessful cross-claims. A further issue involved the interpretation and application of Calderbank offers made by both parties during the proceedings. The court had to determine whether these offers were reasonable and if either party was entitled to an order for costs.

In addressing these issues, the court noted that while the defendant's claims about the sham nature of the contract were unsuccessful, the contract was indeed unjust. Consequently, the court ordered the contract to be varied. Regarding the Calderbank offers, the court found it difficult to ascertain whether the offerees obtained a better result from the judgment. The defendant's offer was made before any evidence was served and was stated to be open for 21 days but was withdrawn without warning after five days. The court concluded that it was not unreasonable for the plaintiff not to accept the defendant's offer. Therefore, no order for costs was made.

The final orders of the court were that the plaintiff was entitled to possession of the land, the loan deed and mortgage were varied to correct their unjust nature, and no costs were awarded to either party.

Orders