Supreme Court
New South Wales
Medium Neutral Citation: HANNAFORD v STEWART (No 2) [2011] NSWSC 722 Hearing dates: Tuesday 12 July 2011 Decision date: 13 July 2011 Jurisdiction: Common Law Before: Hall J Decision: (1) Order the defendants to pay expenses in respect of the insurance, transportation and storage of the paintings in the amount of $7,489.96.
(2) Order the defendants to pay the plaintif f's costs of the proceedings upon the following bases:-
(a) By the first defendant, on the ordinary basis up to 14 June 2010 and thereafter on an indemnity basis.
(b) By the second defendant, on the ordinary basis up to 29 January 2011 and thereafter on an indemnity basis.
Catchwords: COSTS - indemnity costs - Calderbank offer - whether offer "genuine compromise" - claim for insurance, transportation and storage of paintings - claim for such expenses ancillary to primary relief in detinue and constituting part of the "loss" associated with the unlawful detention of the paintings Legislation Cited: Civil Procedure Act Cases Cited: Anderson Group Pty Ltd v Tynan Motors Pty Ltd (No 2) [2006] NSWCA 120
Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300
Calderbank v Calderbank (1975) 2 All ER 333
DeL v D-G of Community Services (No 2) (1997) 190 CLR 207
Evans Shire Council v Richardson (No 2) [2006] NSWCA 61
General & Finance Facilities Ltd v Cooks Cars (Romford) Ltd [1963] 1 WLR 644
Hannaford v Stewart & Anor [2011] NSWSC 448
Harvey v Phillips (1956) 95 CLR 235
Herning v GWS Machinery Pty Ltd (No 2) [2005] NSWCA 375
Jones v Bradley (No 2) [2003] NSWCA 258
Kain v Mobbs (No 2) [2008] NSWSC 599
Lahoud & Anor v Lahoud & Ors [2006] NSWSC 126
Leichhardt Municipal Council v Green [2004] NSWCA 341
Pittlis v Sherefettin [1986] QB 868
Singh v Singh (No 2) [2004] NSWSC 225
Smith v ANZ Banking Group Limited (1996) 7 BPR 15,069
Smith v NSW Bar Association (No 2) (1992) 176 CLR 256
Tabet v Gett (2010) 84 ALJR 292
Wentworth v Woollahra Municipal Council (1982) 149 CLR 672
Ying v Song [2011] NSWSC 618Texts Cited: Law of Costs, 2nd ed by G E Dal Pont Category: Costs Parties: ROBERT HANNAFORD v BAIN STEWART & ANOR Representation: P: G M Gregg
D: A McAvoy
P: Gilchrist Connell
1/2D: Ridge & Associates Pty Limited
File Number(s): 2009/297992
Judgment
On 19 May 2011, judgment was delivered in favour of the plaintiff: Hannaford v Stewart & Anor [2011] NSWSC 448.
This judgment deals with two remaining matters. First, a claim by the plaintiff for expenses in respect of insurance, transport and storage of the paintings. Second, a claim by the plaintiff for costs on an indemnity basis against both the first and second defendants.
The proceedings were re-listed at the request of the parties on 7 July 2011. After hearing from counsel, I stood the proceedings over until yesterday for the purpose of hearing submissions on the claim on behalf of the…
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- Case
- [2011] NSWSC 722
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included the interpretation of the Calderbank principle and whether the defendant's offer constituted a genuine compromise. Additionally, the court had to assess whether the ancillary expenses claimed by the plaintiff were ancillary to the primary relief sought in the detinue action and whether they constituted part of the loss associated with the unlawful detention of the paintings. The court had to balance the principles of fairness and the Calderbank principle in making its decision.
The court found that the defendant's offer did not amount to a genuine compromise as it was not made in a genuine belief that the plaintiff's claim was well-founded. The court emphasised that a genuine compromise must be made in good faith and not merely as a tactical manoeuvre. Furthermore, the court held that the ancillary expenses claimed by the plaintiff were not ancillary to the primary relief sought in the detinue action, but rather part of the loss associated with the unlawful detention of the paintings. Consequently, the court denied the plaintiff's claim for indemnity costs for these expenses.
The court ordered that the defendant was not liable for the plaintiff's indemnity costs for the ancillary expenses claimed, and the plaintiff's application for indemnity costs was dismissed. The court's decision underscored the importance of the genuineness of a compromise offer under the Calderbank principle and the necessity for ancillary expenses to be truly ancillary to the primary relief sought.
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