Fraser-Adams v Heymans - [2001] NTSC 95

Fraser-Adams & Anor v Heymans & Ors [2001] NTSC 95
PARTIES:SUSAN FRASER-ADAMS and OCHRE BUILDING PTY LTD
v

DETECTIVE SERGEANT RONALD HEYMANS, DETECTIVE NEIL GRANT, JENNIFER MINNS and the DIRECTOR OF PUBLIC PROSECUTIONS

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:No 66 of 2001
DELIVERED:  2 November 2001
HEARING DATES:  11 October 2001
JUDGMENT OF:  MILDREN J
REPRESENTATION:
Counsel:
Plaintiffs:M Carter
Defendants:E Hutton
Solicitors:
Plaintiffs:Thomas Berkley
Defendants:Hunt and Hunt
Judgment category classification:    C
Judgment ID Number:
Number of pages:  6

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
No 66 of 2001
Fraser-Adams & Anor v Heymans & Ors [2001] NTSC 95
BETWEEN:

SUSAN FRASER-ADAMS and OCHRE BUILDING PTY LTD
Plaintiffs

AND:

DETECTIVE SERGEANT RONALD HEYMANS, DETECTIVE NEIL GRANT, JENNIFER MINNS and the DIRECTOR OF PUBLIC PROSECUTIONS
Defendants

CORAM: MILDREN J
REASONS FOR JUDGMENT
(Delivered 2 November 2001)
MILDREN J:

On 8 May 2001, I delivered reasons for judgement in this matter and in an associated matter, The Queen v Susan Fraser-Adams (20004375). In relation to this matter I made certain declarations sought by the plaintiffs, but as there were still outstanding issues to be resolved I adjourned further consideration of the summons. In relation to the application for a stay in the criminal proceedings, I refused the application. I indicated that I would hear the parties as to costs.
At the hearing, no relief was sought against the defendants Jennifer Minns or the Director of Public Prosecutions in these proceedings, notwithstanding that they were parties to the action. On 3 October 2001, this matter was finalised as between the plaintiffs and the defendants Heymans and Grant (hereinafter called “the defendants”) by orders made by consent, as well as one order which I was asked to resolve between those parties on that day.
The plaintiffs now seek orders for costs against the defendants, including an order for indemnity costs. Those orders are opposed by the defendants.
The first issue is whether the plaintiffs are entitled to an order for costs at all. Counsel for the plaintiffs, Mr Carter, submitted that the plaintiffs were ultimately wholly successful. Counsel for the defendants, Mr Hutton, opposed that application on the basis that the defendants offered to settle the action well before the hearing on substantially the same basis as the action was ultimately finalised. I do not accept Mr Hutton’s submission. There is a significant difference between the defendants' offer as contained in their solicitor’s letter of 29 March 2001 and the orders ultimately made and that difference lay at the root of the dispute between the parties. Ultimately, Mr Hutton did not press this point. The plaintiffs were clearly successful and are entitled to an order for costs.
The next point is that Mr Hutton submitted that I should only award part of the costs sought by the plaintiffs because:
the plaintiffs were unsuccessful in obtaining a stay in the criminal proceedings and that part…

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 Fraser-Adams v Heymans

Details

AGLC: Fraser-Adams v Heymans [2001] NTSC 95
Case: [2001] NTSC 95
Decision Date: 2 November 2001

CaseChat Overview and Summary

The case of Fraser-Adams & Anor v Heymans & Ors [2001] NTSC 95 involved the plaintiffs, Susan Fraser-Adams and Ochre Building Pty Ltd, against the defendants, Detective Sergeant Ronald Heymans, Detective Neil Grant, Jennifer Minns, and the Director of Public Prosecutions. The matter was heard in the Supreme Court of the Northern Territory exercising Territory jurisdiction. The plaintiffs sought orders for costs against the defendants, including an order for indemnity costs. The defendants opposed the plaintiffs' claims. The key legal issues for the court to decide were whether the plaintiffs were entitled to an order for costs, and if so, whether they were entitled to an order for indemnity costs.

The court held that the plaintiffs were entitled to an order for costs because they were ultimately successful in their claims. However, the court decided that the plaintiffs should only recover 90% of the costs and disbursements related to counsels' fees and instructing solicitors' fees for in-court attendances, reflecting the fact that part of the application was dealt with in the Court's criminal jurisdiction. The court rejected the plaintiffs' application for indemnity costs, finding that the circumstances were not sufficient to warrant such an order. The court also found that the plaintiffs were entitled to an order for costs in relation to carrying out the orders made on 3 October 2001.

The final orders of the court were as follows: the defendants were to pay the plaintiffs' costs of and incidental to the proceeding, with the defendants to pay 90% of the plaintiffs' costs and disbursements in relation to counsels' fees and the fees for instructing solicitors for in-court attendances for the hearing conducted on 4 and 5 April 2001. Each party was to bear their own costs of and incidental to the application heard on 11 October 2001. The plaintiffs were entitled to tax their costs forthwith, with the costs to be paid within fourteen days of the date upon which the costs are either agreed or certified by the taxing officer.

Orders