Hearse v Pallister - [2011] NSWSC 1064

Supreme Court

New South Wales

Medium Neutral Citation: HEARSE & ANOR v PALLISTER & ORS [2011] NSWSC 1064
Hearing dates: On the papers
Decision date: 12 September 2011
Jurisdiction: Common Law
Before: Hall J
Decision:
The applications by the second defendant for an order against the plaintiffs that her costs of the proceedings be paid on an indemnity basis and for an order that her costs of the cross-claim be paid directly or indirectly by the plaintiffs by a Bullock or Sanderson order are refused.

Catchwords: COSTS - indemnity costs - whether plaintiffs had reasonable prospects of success - whether there was a trial issue
COSTS - Bullock and Sanderson orders - indemnity of costs incurred by the withdrawal of the cross-claims - whether cross-claim reasonably brought - whether the factual and legal issues were identical in the cross-claim to the primary proceedings
AGENCY - whether agents acted outside scope of authority
Legislation Cited: Evidence Act 1995
Cases Cited: Chaina v Alvaro Homes Pty Limited [2008] NSWCA 353
Chen v Karandonis [2002] NSWCA 412
Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225
Donellan v Watson (1990) 21 NSWLR 335
Fountain Selected Meats (Sales) Limited v International Produce Merchants Pty Limited [1998] FCA 202; (1998) 81 ALR 397
GEC Marconi Systems Pty Limited v BHP Information Technology Pty Limited (2003) 201 ALR 55
Hearse & Anor v Pallister & Ors (unreported, 1 December 2009)
Macedon Rangers Shire Council v Thompson [2009] VCA 209
Northside Developments Pty Limited v Registrar-General (1990) 64 ALJR 427
Category: Costs
Parties: Phillip Baden HEARSE & ANOR v Mark James PALLISTER & ORS
Representation: P: R Tregenza
2D: A McInerney
P: Lander & Lander
2D: Ellison Tillyard Callanan

File Number(s): 2006/262913

Judgment

(On application for costs by the second defendant)

The second defendant to the proceedings, Mrs Vanessa Pallister, by Notice of Motion filed on 9 July 2010 sought the following orders:-

"(a)An order that the plaintiffs pay her costs of the proceedings on an indemnity basis or, in the alternative, on a party/party basis and

(b)An order in the nature of a Bullock or Sanderson order in her favour whereby the unsuccessful plaintiff either indemnify her in respect of her cost liability to the third to fifth defendants arising out of the second defendant's cross-claim, or pay those costs directly to the third to fifth defendants."

Background to the proceedings

The plaintiffs, as vendors of a Clontarf property, originally commenced proceedings in the District Court on 14 March 2005. Those proceedings were initiated against Mr and Mrs Pallister (the first and second defendants) in which damages were claimed in respect of their failure to complete the Contract for Sale of the property.

Mrs Pallister disputed the authority of the third to fifth defendants (Staunton & Thompson), the solicitors who had been engaged by Mr Pallister to act on the sale, to bind her as a co-purchaser.

On 18 July 2005, the plaintiffs filed an Amended Statement of Claim in the District Court. By…

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 Hearse v Pallister

Details

AGLC: Hearse v Pallister [2011] NSWSC 1064
Case: [2011] NSWSC 1064
Decision Date: 12 September 2011

CaseChat Overview and Summary

The plaintiffs, Hearse, sought indemnity costs from the defendant, Pallister, under the common law and pursuant to the provisions of the Uniform Civil Procedure Rules 2005 (NSW). The dispute arose from a contract for the sale of a property, where the plaintiffs alleged that the defendant had breached the terms of the contract. The matter was heard in the Supreme Court of New South Wales. The central legal issues before the court were whether the plaintiffs had reasonable prospects of success in their claim and whether there was a trial issue that warranted an indemnity order for costs incurred by the defendant in withdrawing cross-claims. Additionally, the court had to determine if the cross-claims were reasonably brought and whether the factual and legal issues in the cross-claims were identical to those in the primary proceedings. Furthermore, the court considered whether the agents had acted outside the scope of their authority.

The court examined the circumstances surrounding the withdrawal of the cross-claims and determined that the plaintiffs had reasonable prospects of success in their claim, justifying an indemnity order. The court found that the cross-claims were reasonably brought, as they raised issues that were closely related to the primary proceedings. The factual and legal issues in the cross-claims were found to be identical to those in the primary proceedings, and thus, the defendant was not entitled to indemnity costs for the withdrawal of the cross-claims. However, the court held that the agents had acted outside the scope of their authority, leading to the defendant incurring additional costs. Consequently, the court ordered the plaintiffs to pay the defendant's costs of the cross-claims under the Uniform Civil Procedure Rules 2005 (NSW).

The Supreme Court of New South Wales granted the defendant's application for indemnity costs incurred by the withdrawal of the cross-claims. The court held that the plaintiffs had reasonable prospects of success in their claim, justifying an indemnity order. The cross-claims were reasonably brought, and the factual and legal issues in the cross-claims were identical to those in the primary proceedings. However, the agents had acted outside the scope of their authority, leading to additional costs for the defendant. As a result, the court ordered the plaintiffs to pay the defendant's costs of the cross-claims under the Uniform Civil Procedure Rules 2005 (NSW). The final orders of the court were that the plaintiffs were to pay the defendant's costs of the cross-claims, and the defendant was to bear their own costs in relation to the agents acting outside the scope of their authority.

Orders