Gabriel v Grech (No 6) - [2020] NSWSC 1220

Supreme Court

New South Wales

Medium Neutral Citation: Gabriel v Grech (No 6) [2020] NSWSC 1220
Hearing dates: On the papers
Decision date: 09 September 2020
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1)   Fix the amount of the judgment ordered in favour of the plaintiff on 11 March 2020 by this Court in the sum of $21,942.77 being $15,900.00 plus pre-judgment interest up to 10 March 2017 in the sum of $6,042.77.
(2)   Set aside the following orders made by Atkinson LCM on 11 August 2017:
“3.   Order that Joseph Gabriel [the plaintiff] pay Paul Grech’s [the defendant’s] costs on the ordinary basis as agreed or assessed.
4.   Order that Joseph Gabriel [the plaintiff] to [sic] pay 50% of DMC’s [the cross-defendant’s] costs on the ordinary basis as agreed or assessed.”
(3)   In lieu of order 3 made by Atkinson LCM on 11 August 2017, order Paul Grech (the defendant) to pay Joseph Gabriel’s (the plaintiff’s) costs of the proceedings in the Local Court.
(4)   In lieu of order 4 made by Atkinson LCM on 11 August 2017, order Drive My Car Rentals Pty Ltd (the cross-defendant in the Local Court) to pay the plaintiff’s costs of the proceedings in the Local Court from 4 November 2014.
(5)   Order DMC to pay the plaintiff’s costs of DMC’s notice of motion to strike out the proceedings and DMC’s notice of motion for security for costs and 75% of the plaintiff’s costs of the proceedings in this Court.

Catchwords:
COSTS — Party/Party — Court’s discretion — Factors relevant to exercise of discretion — Costs in Local Court proceedings and subsequent appeal to Supreme Court — Multiple Calderbank offers made by active parties in both proceedings — Conduct which prolonged proceedings

Legislation Cited:
Civil Procedure Act 2005 (NSW), Pt 6, s 98
Local Court Act 2007 (NSW), s 41
Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Cases Cited:
Berkeley Challenge Pty Ltd v Potbury [1997] NSWCA 44
Calderbank v Calderbank [1975] 3 All ER 333
Degmam Pty Ltd (in liq) v Wright (No 2) [1983] 2 NSWLR 354
Gabriel v Grech [2018] NSWSC 1652
Gabriel v Grech [2019] NSWSC 1163
Gabriel v Grech (No 3) [2020] NSWSC 218
Insurance Exchange of Australasia v Dooley (2000) 50 NSWLR 222; [2000] NSWCA 159

Category: Costs
Parties: Joseph Gabriel (Plaintiff)
Drive My Car Rentals Pty Ltd (Second Defendant)
Mark Gabriel (Third Defendant)
Representation:
Counsel:
S A Baron Levi (Plaintiff and Third Defendant)
M Ashhurst SC / P Barham (Second Defendant)
Solicitors:
William Roberts Lawyers (Plaintiff and Third Defendant)
Fraser Clancy Lawyers Pty Ltd (Second Defendant)

File Number(s): 2017/273635

Judgment

Introduction

The background to this matter can be shortly stated. On 4 August 2011 a car driven by Paul Grech (the defendant) collided with and damaged the rear end of a car driven by the son of Joseph Gabriel (the plaintiff). The plaintiff sued the defendant who cross-claimed against Drive My Car Rentals Pty Ltd (DMC) from which he had rented the car. 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 Gabriel v Grech (No 6)

Details

AGLC: Gabriel v Grech (No 6) [2020] NSWSC 1220
Case: [2020] NSWSC 1220
Decision Date: 09 September 2020

CaseChat Overview and Summary

The case of Gabriel v Grech (No 6) involved a dispute between Gabriel and Grech, with the proceedings spanning from the Local Court to the Supreme Court. The primary issue was the determination of costs incurred during the litigation, with both parties having made multiple Calderbank offers at various stages. The Local Court had initially awarded costs to Grech, but Gabriel appealed this decision to the Supreme Court. The appeal focused on the exercise of the court's discretion in awarding costs, particularly considering the conduct of both parties that prolonged the proceedings.

The legal issues at hand were the appropriate factors to consider in exercising the court's discretion over costs in Local Court proceedings and the subsequent appeal to the Supreme Court. The court had to evaluate the conduct of both parties, including the making of Calderbank offers, and their impact on the length and complexity of the proceedings. The court also considered whether the offers were genuine and made in good faith.

In its reasoning, the court emphasised the importance of the conduct of the parties in the litigation process. The court noted that while Calderbank offers are significant, they are not the sole determinant of costs. The court found that Gabriel's conduct, which included making multiple offers and delaying tactics, contributed to the prolongation of the proceedings. Consequently, the court determined that the costs incurred were appropriately awarded to Grech, reflecting the conduct of both parties throughout the litigation. The Supreme Court upheld the original decision of the Local Court regarding the award of costs.

Orders