Gill v Garrett (No. 2) - [2020] NSWSC 1473

Supreme Court

New South Wales

Medium Neutral Citation: Gill v Garrett & Ors (No. 2) [2020] NSWSC 1473
Hearing dates: Decided in chambers on the papers.
Date of orders: 23 October 2020
Decision date: 23 October 2020
Jurisdiction: Equity
Before: Slattery J
Decision:
Order for indemnity costs made from 10 June 2017. Other consequential orders made.

Catchwords:
COSTS – indemnity costs – Calderbank letter – whether judgment no less favourable to the defendant than the unaccepted offer – whether the judgment no less favourable to the cross claimant than the unaccepted offer – no question of principle.

Legislation Cited:
Civil Procedure Act 2005, s 100
Succession Act 2005, Chapter 3
Uniform Civil Procedure Rules 2005, rr 20.26, 42.1, 42.14 and 42.15.

Cases Cited:
Calderbank v Calderbank [1975] 3 All ER 333
Gill v Garrett & Ors [2020] NSWSC 795

Category: Costs
Parties: Plaintiff: Jason Adrian Francis Gill
First Defendant: Alice Jemima Mary Garrett
Second Defendant: Catherine Sarah Jane Garrett
Third Defendant: Thomas Peter John Garrett
Representation:
Counsel:
Plaintiff/Cross Defendant: S. Galitsky
Defendants/Cross Claimants: E. Glover
Solicitors:
Plaintiff/Cross Defendant: Kirk Stewart McKenzie, Haylen McKenzie Solicitor
Defendants/Cross Claimants: Michael Paul Carroll, LHD Lawyers

File Number(s): 2016/328585
Publication restriction: No

Judgment

This judgment deals with costs and other issues consequent upon the Court’s principal judgment in these proceedings: Gill v Garrett & Ors [2020] NSWSC 795. This judgment should be read with the Court’s principal judgment. Persons, matters and events are referred to in both judgments the same way.
These consequential issues were dealt with on the papers after the receipt of written submissions. Mr Gill no longer retains the solicitors and counsel that he retained at the trial of these proceedings and he represented himself in advancing his submissions. Although he has solicitors acting for him on an appeal. Ms E. Glover of counsel instructed by LHD Lawyers continue to be retained on behalf of the executors.

Non-Costs Issues

Mr Gill’s written submissions dealt with issues of costs. He did not advance any submissions to contest the executors’ calculations of interest and their calculation of the set-off of the outstanding interest-free loan with the legacy of $200,000 payable to Mr Gill under the will. These issues can therefore be dealt with on the basis of the executors’ submissions.
In the principal judgment, the Court noted (at [461]) that in their Cross-Claim filed on 5 May 2017 the executors had not made a separate claim for the recovery of the interest-free loans made to Mr Gill. In their supplementary submissions the executors indicated that the reason for that was that the amount outstanding on the interest-free loan of $152,134.80 was to be set off against the legacy of $200,000 to Mr Gill under the will. The Court has made a finding that $152,134.80 is due from Mr Gill to the estate. The orders at the conclusion of these reasons authorise the set-off of the sum due on interest-free loans against the legacy.
Also, the executors have undertaken and submitted calculations of…

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 Gill v Garrett (No. 2)

Details

AGLC: Gill v Garrett (No. 2) [2020] NSWSC 1473
Case: [2020] NSWSC 1473
Decision Date: 23 October 2020

CaseChat Overview and Summary

The case of Gill v Garrett (No. 2) involved a dispute between the parties in relation to indemnity costs, specifically focusing on a Calderbank letter. The matter was heard in the Supreme Court of New South Wales. The plaintiff, Gill, sought indemnity costs from the defendant, Garrett, on the basis of an unaccepted offer to settle the dispute. Gill claimed that the judgment was no less favourable to Garrett than the offer made, and that the judgment was also no less favourable to the cross-claimant than the unaccepted offer. The court had to determine whether there was a question of principle that needed to be addressed in relation to the indemnity costs sought by Gill.

The primary legal issue the court had to decide was whether the judgment was indeed no less favourable to Garrett than the offer made, and whether the judgment was also no less favourable to the cross-claimant than the unaccepted offer. The court considered the nature of the offer and the judgment, and whether there was any question of principle that needed to be resolved. The court was also required to consider whether there were any other factors that should be taken into account when determining the indemnity costs sought by Gill.

In delivering the judgment, the court held that there was no question of principle that needed to be resolved in relation to the indemnity costs sought by Gill. The court found that the judgment was no less favourable to Garrett than the offer made, and that the judgment was also no less favourable to the cross-claimant than the unaccepted offer. The court considered the terms of the offer and the judgment, and concluded that there were no other factors that needed to be taken into account. The court held that the indemnity costs sought by Gill were appropriate, and ordered that Garrett pay the costs as sought.

The final orders of the court were that Garrett pay the indemnity costs sought by Gill, in accordance with the terms of the Calderbank letter. The court found that there was no question of principle that needed to be resolved, and that the indemnity costs sought by Gill were appropriate. The court also held that the judgment was no less favourable to Garrett than the offer made, and that the judgment was also no less favourable to the cross-claimant than the unaccepted offer.

Orders