Gambacorta v Di Giovanni (No 2) - [2021] NSWSC 803

Supreme Court

New South Wales

Medium Neutral Citation: Gambacorta v Di Giovanni (No 2) [2021] NSWSC 803
Hearing dates: On the papers
Date of orders: 1 July 2021
Decision date: 01 July 2021
Jurisdiction: Equity
Before: Robb J
Decision:
See pars [12], [48], [55], [57] and [58].

Catchwords:
COSTS — Party/Party — General rule that costs follow the event — Where plaintiff sought an order that the defendant pay the plaintiff’s costs on the indemnity basis — Where defendant sought orders that the costs for both the plaintiff and defendant be paid out of the deceased’s estate on the indemnity basis in reliance on the principle in Re Buckton (that is, that the proceedings arose out of the fault of the deceased in leaving her affairs in a state of confusion) — Where the Court found that the deceased did not leave her affairs in a state of confusion — Where the plaintiff relied on a Calderbank offer — Where the Court found that the offer was not an effective Calderbank offer as there was no real element of compromise — Where the Court ordered that the defendant pay the plaintiff’s costs on the ordinary basis from the time of service of the summons and the plaintiff’s affidavits in support, but otherwise that there be no orders for costs on the basis that the parties will pay their own costs

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Gambacorta v Di Giovanni [2021] NSWSC 61
Hazeldene’s Chicken Farm Pty Ltd v Victorian Work Cover Authority (No 2) (2005) 13 VR 435
Leichhardt Municipal Council v Green [2004] NSWCA 341
Re Buckton; Buckton v Buckton [1907] 2 Ch 406
Re Estate of Hodges; Shorter v Hodges (1988) 14 NSWLR 698
Shorten v Shorten [2002] NSWCA 73
Wood v Inglis (Costs) [2009] NSWSC 1900

Category: Costs
Parties: Caterina Gambacorta (plaintiff)
Giuliano Di Giovanni (defendant)
Representation:
Counsel:
C Stomo (plaintiff)
J Thomson (defendant)
Solicitors:
Team Legal Group (plaintiff)
Calabrese Lawyers (defendant)

File Number(s): 2018/60480

Judgment

The primary judgment in these proceedings was published on 9 February 2021: Gambacorta v Di Giovanni [2021] NSWSC 61.
The parties were required to confer and submit short minutes of order to give effect to the reasons in the primary judgment. Directions were made for the service of submissions on the issue of the orders to be made, including as to the costs of the proceedings.
These reasons will assume knowledge of the primary judgment. Without meaning any disrespect, I will also refer to the parties and the other persons involved by their first names.
Giuliano delivered written submissions on 13 May 2021 and Caterina responded on 17 May 2021. Giuliano provided a reply on 25 May 2021. Both parties supplied a bundle of correspondence. The outstanding issues are to be decided on the papers.
There was a substantial measure of agreement between the parties concerning the substantive orders that should be made to give effect to the primary judgment. Where there are small drafting…

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: [2021] NSWSC 803
Decision Date: 01 July 2021

CaseChat Overview and Summary

In Gambacorta v Di Giovanni (No 2), the parties were involved in a legal dispute concerning costs. The case was heard in the Supreme Court of New South Wales. The plaintiff, Gambacorta, sought an order for the defendant, Di Giovanni, to pay the plaintiff's costs on an indemnity basis. Conversely, the defendant sought an order that the costs for both parties be paid from the estate of a deceased woman, relying on the principle in Re Buckton, which suggests that costs should be borne by the estate if the deceased left their affairs in a state of confusion. The plaintiff also relied on a Calderbank offer as a basis for their costs application.

The primary legal issues before the court were whether the deceased left her affairs in a state of confusion and whether the Calderbank offer constituted an effective compromise. The court examined the evidence and found that the deceased did not leave her affairs in a state of confusion. Furthermore, the court determined that the Calderbank offer was not an effective compromise because it lacked a genuine element of compromise. The court needed to decide the appropriate basis for awarding costs in light of these findings.

The court held that the defendant should pay the plaintiff's costs on the ordinary basis from the time of service of the summons and the plaintiff's affidavits in support. However, the court decided that there should be no further orders for costs, as the parties would bear their own costs. This decision was based on the court's findings that the deceased's affairs were not in a state of confusion and that the Calderbank offer did not amount to an effective compromise. The court's ruling effectively left the parties to bear their own costs, except for the specified period during which the defendant was required to pay the plaintiff's costs on the ordinary basis.

Orders