Gordon v Lever (No 3) - [2020] NSWCA 44

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Gordon v Lever (No 3) [2020] NSWCA 44
Hearing dates: On the papers
Date of orders: 20 March 2020
Decision date: 20 March 2020
Before: Bell P; Payne JA and Emmett AJA
Decision:
No variation of costs order

Catchwords: COSTS – discretion as to variation of costs order – Calderbank letter
Cases Cited: Gordon v Lever (No 2) [2019] NSWCA 275
Category: Costs
Parties: Stanley Robert Gordon (First Appellant)
Christine Margaret Gordon (Second Appellant)
Allen John Lever (First Respondent)
Debra Ann Lever (Second Respondent)
Representation:
Counsel:
M R Hall SC, L Byrne (Appellants)
G A Sirtes SC, C Simpson (Respondents)
Solicitors:
John F Gibson (Appellants)
Parker & Kissane Solicitors (Respondents)

File Number(s): 2019/11223
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity – Expedition List

Citation:

[2018] NSWSC 1888 and [2019] NSWSC 571

Date of Decision:

14 December 2018 and 17 May 2019

Before:

Sackar J

File Number(s):

2017/55270

Judgment

THE COURT: The Court delivered judgment on the substantive appeal on 13 November 2019: Gordon v Lever (No 2) [2019] NSWCA 275. The Levers were ordered to pay the Gordons’ costs of the appeal.
Subsequent to delivery of judgment, the Gordons have sought to vary this costs order by adding to the costs order in their favour the words “assessed on the ordinary basis up to 4 April 2019, and on an indemnity basis thereafter.” Written submissions have been received and considered by the Court.
This application is put by reference to a without prejudice offer by the Gordons to the Levers dated 4 April 2019 to the following effect:

“The Appellant hereby offers to discontinue their Appeal in this matter on the following basis:-
1. That the Respondent agrees to the registration of the Right of Carriageway and Terms thereon as put by the Plaintiff to the Court below (Terms Granting Easement).
2. That each party bear their own costs of the Appeal.
Having been able to consider the grounds of the Appeal put by the Appellant, you would be able to assess that the Appellant has excellent prospects of success in this Appeal. Further that the Orders of the Court below are impractical at best and legally non-compliant and unjust.
Acceptance of the Plaintiff’s terms provides a practical solution which benefits your client and saves each party the not insubstantial costs that further litigation of this matter incurs.
This offer is open for a period of 14 days from the date hereof.
Should you determine not to accept this offer, we reserve the right to rely on this offer on the question of costs before the Court and in this respect, we rely on the principles enunciated in the matter of Calderbank which are adopted by the Court in determining costs.”

Whilst it is correct that the Gordons enjoyed a large measure of success on the appeal, the terms upon which the right of carriageway was granted were not…

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 Gordon v Lever (No 3)

Details

AGLC: Gordon v Lever (No 3) [2020] NSWCA 44
Case: [2020] NSWCA 44
Decision Date: 20 March 2020

CaseChat Overview and Summary

The appeal concerned an application to vary a costs order made in the Supreme Court of Victoria. The parties were Gordon (appellant) and Lever (respondent). The dispute arose from the respondent's success in a prior proceeding, which led to a costs order in their favour. The appellant sought to have this costs order varied.

The central legal issue before the Court of Appeal was whether the primary judge had erred in exercising their discretion regarding the costs order. Specifically, the court had to consider whether a *Calderbank* letter, which is a letter written by a party offering to settle a dispute on certain terms, had been adequately considered by the primary judge in making the costs order. The appellant argued that the *Calderbank* letter demonstrated that they had made a reasonable offer of settlement, and that the respondent's refusal of this offer should have influenced the costs order against the respondent.

The Court of Appeal found no error in the primary judge's exercise of discretion. The court held that the primary judge had indeed considered the *Calderbank* letter and had given it appropriate weight in the context of all the circumstances of the case. The principles applied were those governing the exercise of judicial discretion in awarding costs, which requires a broad consideration of all relevant factors. The court emphasised that a *Calderbank* offer, while relevant, does not automatically entitle the offeror to a costs order in their favour, nor does it mandate a reduction in the costs awarded to the successful party.

Consequently, the Court of Appeal dismissed the appeal and made no variation to the costs order of the Supreme Court.

Orders

Orders of the court

No variation of costs order

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Gordon v Lever (No 3) [2020] NSWCA 44
Hearing dates:	On the papers
Date of orders:	20 March 2020
Decision date:	20 March 2020
Before:	Bell P; Payne JA and Emmett AJA
Decision:	No variation of costs order
Catchwords:	COSTS – discretion as to variation of costs order – Calderbank letter
Cases Cited:	Gordon v Lever (No 2) [2019] NSWCA 275
Category:	Costs
Parties:	Stanley Robert Gordon (First Appellant) Christine Margaret Gordon (Second Appellant) Allen John Lever (First Respondent) Debra Ann Lever (Second Respondent)
Representation:	Counsel: M R Hall SC, L Byrne (Appellants) G A Sirtes SC, C Simpson (Respondents) Solicitors: John F Gibson (Appellants) Parker & Kissane Solicitors (Respondents)
File Number(s):	2019/11223
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity – Expedition List Citation: [2018] NSWSC 1888 and [2019] NSWSC 571 Date of Decision: 14 December 2018 and 17 May 2019 Before: Sackar J File Number(s): 2017/55270