Gladio Pty Ltd v Buckworth (No 2) - [2015] NSWSC 1462

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Gladio Pty Ltd v Buckworth (No 2) [2015] NSWSC 1462
Hearing dates: On the papers
Date of orders: 08 October 2015
Decision date: 08 October 2015
Jurisdiction: Equity
Before: McDougall J
Decision:
See at paragraph [99].

Catchwords:
COSTS – claim against first defendant – UCPR rule 42.34 – costs order not to be made in proceedings in Supreme Court unless Court satisfied proceedings in appropriate court – whether District Court had jurisdiction to hear the matter – whether Court should in any case exercise its residual discretion to award the plaintiff costs – where plaintiff made a Calderbank offer to settle on payment of $400,000 from the defendants – where the sum the subject of the proceedings was only $145,000 – consequence that offer was unreasonable – no reason to depart from the position set out in rule 42.34 – claim against second defendant – costs should follow the event
COSTS – cross-claims – first defendant’s cross-claim against second defendant – contention that cross-claim was brought as a matter of necessity – not accepted – where cross-claim in any event misconceived – second defendant’s cross-claim against its managing agent – whether appropriate to make a Sanderson order – whether appropriate to make a Bullock order – where bringing of cross-claim was a reasonable response to claims made against second defendant – result that plaintiff and first defendant should indemnify the second defendant in respect of its cross-claim – refusal to accept offers of compromise not unreasonable
Legislation Cited: Civil Liability Act 2002 (NSW)
Civil Procedure Act 2005 (NSW)
Conveyancing Act 1919 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Brookfield Multiplex Pty Ltd v Owners-Strata Plan No 61288 (2014) 88 ALJR 911
Liversidge v Anderson [1942] AC 206
Category: Costs
Parties: Gladio Pty Ltd (Plaintiff)
Virginia Louise Buckworth (First Defendant)
Ashdown Home Units Pty Ltd (Second Defendant)
Laser Cheque Pty Ltd t/as Sydney Company Title Management (Cross-Defendant)
Representation:
Counsel:
G Lucarelli (Plaintiff)
D E Grieve QC (First Defendant)
M A Izzo (Second Defendant)
P A Horvath (Cross-Defendant)
Solicitors:
Minter Ellison (Plaintiff)
Christopher Lane & Associates (First Defendant)
Meridian Lawyers (Second Defendant)
Moray & Agnew (Cross-Defendant)

File Number(s): 2013/359269

Judgment

HIS HONOUR: The plaintiff (Gladio) sued the first defendant (Ms Buckworth) for the return of a deposit. The deposit, $145,000.00, was paid pursuant to a contract for sale of shares in the second defendant (Ashdown). There were three cross-claims.
After an excessively long hearing (stretching over six hearing days in March and June) for such a small claim, I gave judgment on 14 July 2015: [2015] NSWSC 922. I concluded that Gladio succeeded against Ms Buckworth, but not against Ashdown. I concluded, further, that each of the cross-claims failed.
The outcome has given rise to competing contentions as to the costs orders that should be made. Consistent with the way that the case was pleaded and run, the disputes as to costs have generated an absurd amount of paper,…

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: [2015] NSWSC 1462
Decision Date: 08 October 2015

CaseChat Overview and Summary

In the matter of Gladio Pty Ltd v Buckworth (No 2), the Supreme Court of Queensland was tasked with addressing a claim for costs made by the plaintiff against the first defendant. The plaintiff's primary contention was that the District Court did not have jurisdiction to hear the matter, and therefore, the Supreme Court should not exercise its residual discretion to award the plaintiff costs. The plaintiff had made a Calderbank offer to settle for $400,000, which was significantly higher than the sum of $145,000 that was the subject of the proceedings. This made the offer unreasonable, leading to the conclusion that the costs order should not be granted in accordance with UCPR rule 42.34.

The court's analysis focused on whether the District Court had jurisdiction over the matter, and if not, whether the Supreme Court should still exercise its discretion to award costs. The court found that the District Court did not have jurisdiction, and the Calderbank offer was unreasonable given the disparity between the offer and the actual amount in dispute. The court adhered to the position set out in UCPR rule 42.34 and ruled that the plaintiff's claim against the first defendant for costs should be dismissed. The court also found that the costs of the plaintiff's cross-claim against the second defendant should follow the event, and the second defendant's cross-claim against its managing agent was reasonable, leading to a decision that the plaintiff and the first defendant should indemnify the second defendant for its cross-claim costs.

Orders