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Haggerty v Sweeten

Haggerty v Sweeten

Case [2023] NSWSC 850 20 July 2023

Costs

Consent Judgment

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Haggerty v Sweeten [2023] NSWSC 850
Hearing dates: 7 March 2023
Decision date: 20 July 2023
Jurisdiction: Common Law
Before: Rothman J
Decision:
(1)   The cross-claimants shall pay the cross-defendants their costs of the Cross-Claim on the ordinary basis;
(2)   All other claims for costs are dismissed with no further order;
(3)   Proceedings dismissed.

Catchwords:
COSTS – Claim and Cross-Claim settled – Cross-Claim dismissed by consent – no reason not to award costs to cross-defendants – Statement of Claim resolved by consent judgment for plaintiffs – mini-trial not appropriate – earlier offer declined – judgment less favourable than plaintiffs’ offer

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 22(3)(a), 56, 91, 98
Conveyancing and Law of Property Act 1898 (NSW), ss 68, 69
Uniform Civil Procedure Rules 2005 (NSW), rr 12.10, 20.26(2)(c), 42.1, 42.20

Cases Cited:
Calderbank v Calderbank [1975] All ER 333
Calokerinos, Executor of the Estate of the late George Sclavos v Aantcorp Pty Ltd [2023] NSWSC 148
Commonwealth of Australia v Gretton [2008] NSWCA 117
G R Vaughan (Holdings) Pty Ltd v Vogt [2006] NSWCA 263
KBRV Resort Operations Pty Ltd v Chilcott (2001) 51 NSWLR 516; [2001] NSWCA 116
Lindsay v Murphy (1967) 90 WN (Pt 1) (NSW) 410
Magnus v National Bank of Scotland (1888) 57 LJ Ch 902
Nadilo v Eagleton [2021] NSWCA 32
Northern Territory v Sangare (2019) 265 CLR 164; [2009] HCA 25
ONE.TEL Ltd v Deputy Commissioner of Taxation (2000) 101 FCR 548; [2000] FCA 270
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Re Minister for Immigration and Ethnic Affairs (Cth): ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6

Category: Consequential orders
Parties: Margaret Haggerty (First Plaintiff/First Cross-Defendant)
Patricia Hume (Second Plaintiff/Second Cross-Defendant)
Francis Johnson (Third Plaintiff/Third Cross-Defendant)
Benjamin Sweeten (First Defendant/First Cross-Claimant)
Varvara Sellies (Second Defendant/Second Cross-Claimant)
Representation:
Counsel:
J Stephenson (Plaintiffs/Cross-Defendants)
Self-Represented (Defendants/Cross-Claimants)
Solicitors:
Fahey Rosenblum Lawyers & Mediators (Plaintiffs/Cross-Defendants)
Self-Represented (Defendants/Cross-Claimants)

File Number(s): 2022/00090030

JUDGMENT

HIS HONOUR: These proceedings were commenced by the plaintiffs on 29 March 2022. By way of their Statement of Claim (herein after “the Claim”), the plaintiffs sought possession of a property described as Townhouse 3, 15 Thornton Street, Darling Point NSW 2027 being lots 48, 57, 58 and 88 in Strata Plan 2766 and the whole of the land comprised in folio identifiers 48/SP2766, 57/SP2766, 58/SP2766, and 88/SP2766 (herein after “the property”).
The plaintiffs are the registered proprietors of the property. At the time the proceedings were commenced, the defendants were in occupation of it. The plaintiffs’ claim was that the defendants had no right to occupy the property and had failed to vacate it following lawful requests that they do so. The defendants did not accept the Claim and filed a Defence as well as a Cross-Claim against all three plaintiffs.
The matter was set down to be heard before me on 7 March 2023. Late on 6 March 2023, 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 Haggerty v Sweeten

Details

AGLC: Haggerty v Sweeten [2023] NSWSC 850
Case: [2023] NSWSC 850
Decision Date: 20 July 2023

CaseChat Overview and Summary

The matter involved Haggerty, the plaintiff, and Sweeten, the defendant. The dispute arose from a claim for costs in the context of a settled claim and cross-claim. The matter was heard in the Federal Circuit Court of Australia. The plaintiff sought costs in relation to the settled cross-claim, which had been dismissed by consent. The defendants, who were cross-defendants, opposed the plaintiff's claim for costs, arguing that there was no reason to award costs to them.

The court was required to determine whether the plaintiff was entitled to costs of the cross-claim, given that the cross-claim had been dismissed by consent and the defendants had opposed the plaintiff's claim for costs. The court considered the circumstances in which the cross-claim was dismissed, the fact that the defendants had opposed the plaintiff's claim for costs, and the outcome of the settlement and judgment in favour of the plaintiff.

The court held that it was appropriate to award costs to the cross-defendants in relation to the settled cross-claim. The court noted that the cross-claim had been dismissed by consent and that the defendants had opposed the plaintiff's claim for costs. However, the court found that there was no reason not to award costs to the cross-defendants, given the circumstances of the case. The court also noted that the plaintiff's claim for costs was less favourable than the earlier offer made by the plaintiff. The court held that a mini-trial was not appropriate, given that the Statement of Claim had been resolved by consent judgment for the plaintiff and that the earlier offer had been declined.

The court ordered that the plaintiff's claim for costs of the settled cross-claim be dismissed, and that the cross-defendants be awarded costs of the cross-claim. The court also noted that the costs should be assessed on the standard basis, and that the parties should bear their own costs of the proceedings.

Orders