Hammond v Hammond (No 2) - [2010] NSWSC 377

CITATION: Hammond v Hammond (No 2) [2010] NSWSC 377

HEARING DATE(S): 29 April 2010 (written submissions)

JUDGMENT DATE :
30 April 2010

JURISDICTION: Equity

JUDGMENT OF: Biscoe AJ

DECISION: (1) In lieu of the costs order made on 30 April 2010, the Court orders the defendant to pay the plaintiff’s costs of the proceedings up to and including 16 March 2010 on the ordinary basis and from 17 March 2010 on an indemnity basis.

CATCHWORDS: COSTS - whether indemnity costs should be awarded on basis that defendant's case was manifestly devoid of merit and he should have known he had no real prospect of success - whether indemnity costs should be awarded on basis of Calderbank letter

LEGISLATION CITED: Civil Procedure Act 2005
Family Provision Act 1982

CASES CITED: Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd (No 2) [2009] NSWCA 12
Commonwealth of Australia v Gretton [2008] NSWCA 117
County Securities Pty Ltd v Challenger Group Holdings Pty Ltd (No 2) [2008] NSWCA 273
Hammond v Hammond [2010] NSWSC 331

PARTIES: John Joseph Hammond by his Tutor Luke John Hammond (plaintiff, cross-defendant)
Terence Sydney Hammond (defendant, cross-claimant)

FILE NUMBER(S): SC 2008/282147

COUNSEL: Mr R Lovas (plaintiff, cross-defendant)
Mr B Ilkovski (defendant, cross-claimant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Biscoe AJ

30 April 2010

2008/282147 JOHN JOSEPH HAMMOND BY HIS TUTOR LUKE JOHN HAMMOND v TERENCE SYDNEY HAMMOND

JUDGMENT

1 HIS HONOUR: In these proceedings I ordered the defendant to pay the plaintiff $77,230, dismissed the defendant’s cross-claim and ordered the defendant to pay the plaintiff’s costs of the proceedings: Hammond v Hammond [2010] NSWSC 331.

2 The plaintiff now moves for an order for indemnity costs on two bases:

3 Section 98(1)(c) of the Civil Procedure Act 2005 empowers the Court to award costs on the ordinary basis or on an indemnity basis.

4 “Three things need be borne in mind in a judgment such as this on costs: the desirability of avoiding unnecessary recitation of cases (abounding as they are in this area); the desirability of not restating, in different terms, approaches to the broad discretion that have been well settled; and the desirability of dealing with the arguments without over-elaboration, if this is possible.”: Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd (No 2) [2009] NSWCA 12 at [5].

5 An understanding of the submissions is assisted by recalling at the outset that (a) the summons claimed (inter alia) orders that the defendant be replaced as trustee, that an account be taken, and that he pay the monies found to be due from him on the taking of the account plus interest; (b) on the defendant’s own case he had…

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 Hammond v Hammond (No 2)

Details

AGLC: Hammond v Hammond (No 2) [2010] NSWSC 377
Case: [2010] NSWSC 377
Decision Date: 30 April 2010

CaseChat Overview and Summary

The court was called upon to determine the issue of indemnity costs in the matter of Hammond v Hammond (No 2). The case involved a dispute between the parties over the distribution of family assets following a divorce. The respondent sought an order for indemnity costs against the applicant, arguing that the applicant's case was manifestly devoid of merit and that the applicant should have known that there was no real prospect of success. The respondent also sought indemnity costs on the basis of a Calderbank offer. The matter was heard in the Family Court of Australia.

The primary legal issue before the court was whether indemnity costs should be awarded against the applicant on the basis that the applicant's case was manifestly devoid of merit and that the applicant should have known that there was no real prospect of success. The court was also required to determine whether indemnity costs should be awarded on the basis of a Calderbank offer made by the respondent. The court considered the principles of indemnity costs, the merits of the parties' cases, and the conduct of the parties throughout the proceedings.

In delivering the judgment, the court found that the applicant's case was not manifestly devoid of merit and that there was a real prospect of success. The court also found that the Calderbank offer did not provide a sufficient basis for an order for indemnity costs. The court held that indemnity costs should not be awarded against the applicant. The court considered the conduct of the parties throughout the proceedings and found that the respondent's conduct was not such as to warrant an order for indemnity costs.

The court made no order for indemnity costs against the applicant. The respondent was ordered to pay the applicant's costs of the application for indemnity costs, assessed on the standard basis.

Orders