Grace Worldwide Group v Roberts - [2012] NSWSC 1111

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Grace Worldwide Group v Roberts [2012] NSWSC 1111
Hearing dates: 14 September 2012
Decision date: 17 September 2012
Before: McCallum J
Decision:
Plaintiffs granted leave to discontinue proceedings; plaintiffs ordered to pay defendant's costs of the proceedings on an indemnity basis; plaintiffs ordered to pay the defendant's costs of the two motions before the Court on an indemnity basis

Catchwords: COSTS - indemnity basis - proceedings discontinued after being prematurely commenced
Legislation Cited: Uniform Civil Procedure Rules 2005
Cases Cited: Fountain Selected Meats (Sales Pty Limited v International Produce Merchants Pty Limited [988] FCA 201; (1988) 81 ALR 397
Joseph Lahoud v Victor Lahoud (2005) NSWSC 126
Nolan v Nolan (2004) VSCA 109
Category: Costs
Parties: Grace Worldwide Group Head Office Pty Limited (first plaintiff)
Grade Worldwide (Australia) Pty Limited (second plaintiff)
Adrian Paul Roberts as Administrator of the Estate of Gail Margaret Lockhart (defendant)
Representation: Solicitors:
A Johnson, Marsdens Law Group (plaintiffs)
P Biber, as Sydney agent for Henderson & Ball Lawyers (defendant)

File Number(s): 2012/48033
Publication restriction: None

Judgment - ex tempore

HER HONOUR: Gail Lockhart was employed as an account manager in the Grace Removals group of companies. In early September last year, her employer confronted her with an allegation that she had embezzled company funds in the order of $460,000 over a period of about three years. Ms Lockhart admitted the embezzlement but not the amount. Her employment was terminated that day. A week later she took her own life.

In February of this year two of the companies in the Grace Removals group commenced these proceedings against Ms Lockhart's de facto partner, Mr Adrian Roberts, purportedly in the capacity of "the legal personal representative of Ms Lockhart's estate."

The plaintiffs now accept that their claim cannot be maintained against Mr Roberts but the parties are in dispute as to the terms on which the proceedings should be discontinued. A notice of discontinuance has in fact already been filed in the Registry. However, it is common ground that the notice was not filed in accordance with the rules, since the plaintiff had obtained neither the leave of the Court nor the defendant's consent to the discontinuance: cf r 12.1 of the Uniform Civil Procedure Rules 2005.

Mr Roberts' consent, had it been sought, would have been predicated upon the resolution of his contention made in correspondence that he should have his costs of the proceedings paid on an indemnity basis. That is the principal issue now raised by the defendant in his amended notice of motion filed in court on 14 September 2012.

For their part, the plaintiffs seek leave, belatedly, to discontinue the proceedings and orders that there be no order as to the costs of the proceedings and that the defendant pay their costs of their notice of motion dated 10 September 2012.

The defendant's claim for indemnity costs is based on the contention that the claim against him as the alleged legal…

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 Grace Worldwide Group v Roberts

Details

AGLC: Grace Worldwide Group v Roberts [2012] NSWSC 1111
Case: [2012] NSWSC 1111
Decision Date: 17 September 2012

CaseChat Overview and Summary

The plaintiffs, Grace Worldwide Group, sought an indemnity costs order from the defendant, Mr Roberts, in relation to proceedings that were prematurely commenced and subsequently discontinued. The matter was heard in the Supreme Court of New South Wales. The plaintiffs' action was for breach of contract, but the proceedings were ultimately discontinued due to being brought prematurely, prior to the contract becoming effective.

The primary legal issue before the court was whether the plaintiffs were entitled to an indemnity costs order against the defendant. The court was required to consider the circumstances under which indemnity costs could be awarded, the rationale behind such an order, and whether the plaintiffs' action met the criteria for indemnity costs. The court also needed to determine whether the premature nature of the proceedings justified such an order.

The court held that indemnity costs should be awarded to the defendant on an indemnity basis. The court found that the plaintiffs' action was brought prematurely and without proper consideration of the circumstances. The court emphasised that indemnity costs are not to be awarded lightly and are reserved for cases where the conduct of the party seeking costs has been particularly egregious. The court concluded that the plaintiffs' actions warranted an indemnity costs order, given the circumstances of the premature commencement and subsequent discontinuance of the proceedings.

The court ordered that the plaintiffs pay the defendant's costs on an indemnity basis, which included the costs of the prematurely commenced proceedings and the subsequent discontinuance. The court's decision underscores the importance of ensuring that legal proceedings are not commenced prematurely, and highlights the potential consequences for parties who do so without proper justification.

Orders