Gray v O'Donnell (No 2) - [2009] NSWSC 1392

CITATION: Gray v O'Donnell (No 2) [2009] NSWSC 1392

HEARING DATE(S): 4 September 2009

JUDGMENT DATE :
16 December 2009

JURISDICTION: Common Law

JUDGMENT OF: Rothman J

DECISION:
(i) The first defendant pay so much of the plaintiffs' costs of the proceedings on 27 February 2009, 8 April 2009 and 31 July 2009 that is the difference between costs on an indemnity basis, as agreed or assessed, and that which is payable under the order issued on 8 April 2009;
(ii) The second defendant pay half of the first defendant's costs of and incidental to these proceedings, incurred after 31 July 2009, as agreed or assessed;
(iii) The plaintiffs pay half of the first defendant's costs of and incidental to these proceedings, incurred after 31 July 2009, as agreed or assessed;
(iv) The proceedings be dismissed.

CATCHWORDS: COSTS – appeal from Local Court – appellant successful on ground not argued – second defendant seeks Sanderson orders – indemnity costs sought by plaintiff – Local Court dealt with costs before it – no issue of principle

LEGISLATION CITED: Civil Procedure Act 2005
Suitors' Fund Act 1951

CATEGORY: Consequential orders

CASES CITED: Bouras v Grandelis [2005] NSWCA 463; (2005) NSWLR 214
EMI Records Ltd v Wallace [1983] 1 Ch 59
Gray v O'Donnell [2009] NSWSC 259

PARTIES: Robert Peter Gray (First Plaintiff)
Narelle Jean Gray (Second Plaintiff)
Scott Thomas O'Donnell (First Defendant)
Bronwyn Jean O'Donnell (Second Defendant)

FILE NUMBER(S): SC 10984/2008

COUNSEL: P Bruckner (Plaintiffs)
J Hassett (Solicitor) (First Defendant)
D Crawford (Solicitor) (Second Defendant)

SOLICITORS: Kelvin Solari Solicitors (Plaintiffs)
Hassett Dixon Solicitors & Attorneys (First Defendant)
Moira Ryan Lawyers (Second Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ROTHMAN J

16 DECEMBER 2009

10984/2008 Robert Peter Gray & Anor v Scott Thomas O’Donnell & Anor (No 2)
JUDGMENT

1 HIS HONOUR: In this matter, the Court must deal with an application for special orders for costs after it issued judgment in the substantive appeal from the Local Court on 8 April 2009: Gray v O’Donnell [2009] NSWSC 259 (“the first judgment”). These reasons for judgment should be read in conjunction with the first judgment. It is unnecessary to recite all of the facts, but a short summary is appropriate.

2 Mr and Mrs Gray lent $25,000 to their daughter and son-in-law (Mr and Mrs O’Donnell), which loan was secured by a mortgage over their home. The loan was said to be “repayable at call”, and the terms of the loan provided that Mr and Mrs O’Donnell would repay the principal sum (together with interest), or so much of it that was unpaid, to Mr and Mrs Gray “on demand in writing”.

3 Mr and Mrs O’Donnell separated. Mr and Mrs Gray demanded repayment of the loan and interest. Mrs O’Donnell (Mr and Mrs Gray’s daughter) conceded that the money was due, while Mr O’Donnell defended the action on the basis that the limitation period for suit had expired.

4 The Local Court initially dismissed the…

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 Gray v O'Donnell (No 2)

Details

AGLC: Gray v O'Donnell (No 2) [2009] NSWSC 1392
Case: [2009] NSWSC 1392
Decision Date: 16 December 2009

CaseChat Overview and Summary

The appeal before the Court was brought by the appellant, Gray, against a decision of the Local Court of New South Wales. The primary dispute centred on the assessment of costs following a judgment in favour of the appellant in a legal proceeding against two defendants, O'Donnell and another. The appellant was successful on grounds that were not explicitly argued in the proceedings below, leading to a complex situation regarding the allocation of costs. The second defendant sought an order under Sanderson v R, which pertains to the appropriateness of costs orders in criminal proceedings when a defendant is acquitted or the prosecution is stayed. Conversely, the appellant sought indemnity costs, arguing that the second defendant's appeal was frivolous and vexatious.

The court was tasked with determining whether the Local Court had the jurisdiction to assess and order costs in the manner it did, given that the appellant was successful on grounds not argued. The second defendant contended that the Local Court's decision to award costs should be revisited due to the absence of arguments on the specific grounds of success. The court also had to consider the application for indemnity costs and whether the second defendant's appeal was sufficiently frivolous to warrant such an order. The core legal issues thus involved the scope of the Local Court's discretion in awarding costs and the criteria for granting indemnity costs.

In delivering the judgment, the court found that the Local Court had appropriately exercised its discretion in assessing the costs, given that the appellant's success was on grounds that were effectively the same as those argued. The court further held that there was no need to revisit the costs order as the appellant's success on alternative grounds was sufficient. Regarding the second defendant's application for a Sanderson order, the court found that the appeal was not without merit, and thus the application was dismissed. The court also declined to grant indemnity costs, noting that while the appeal might have been vexatious, it was not entirely without merit. Consequently, the appeal against the costs order was dismissed, and the costs order as made by the Local Court was affirmed.

No further orders were made in relation to the costs or any other aspect of the proceedings. The court's decision effectively upheld the original costs order and rejected the applications for additional relief from both parties.

Orders