Horswill v McClellan (No 2) - [2019] NSWSC 964

Supreme Court

New South Wales

Medium Neutral Citation: Horswill v McClellan (No 2) [2019] NSWSC 964
Hearing dates: On the papers
Date of orders: 30 July 2019
Decision date: 30 July 2019
Jurisdiction: Equity
Before: Darke J
Decision:
Order that the first defendant pay the plaintiffs’ costs of the proceedings on the ordinary basis.

Catchwords: COSTS – departure from the usual rule – application by the plaintiffs’ for indemnity costs – whether the first defendant’s resistance to the plaintiffs’ claim for specific performance of an oral agreement for the sale of land had no real prospects of success – where the first defendant’s evidence was materially similar to the plaintiffs’ evidence – where the first defendant did not substantiate certain claims in his Amended Defence – first defendant’s resistance held not to be unreasonable – first defendant ordered to pay the plaintiffs’ costs on the ordinary basis
Legislation Cited: Civil Procedure Act 2005 (NSW), s 98
Contracts Review Act 1980 (NSW)
Conveyancing Act 1919 (NSW), s 54A
Statute of Frauds 1677, 29 Car II c 3
Cases Cited: Harrison v Schipp [2001] NSWCA 13
Horswill v McClellan [2019] NSWSC 557
Hurstville Municipal Council v Connor (1991) 24 NSWLR 724
James v Douglas [2016] NSWCA 178
Main-Road Property Group v Pelligra & Sons Pty Ltd (No 2) [2009] VSC 174
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Pipikos v Trayans [2018] HCA 39; (2018) 92 ALJR 880
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Category: Costs
Parties: Robert Leslie Horswill (First Plaintiff)
Kim Maree Horswill (Second Plaintiff)
Adam Leslie McClellan (First Defendant)
Jennifer Anne McClellan (Second Defendant)
Representation:
Counsel:
Mr D C Price (Plaintiffs)
Solicitors:
Shaddock Lawyers (Plaintiffs)

File Number(s): 2017/290046
Publication restriction: None

Judgment

On 16 May 2019 the Court delivered judgment in this matter (Horswill v McClellan [2019] NSWSC 557 – “the Principal Judgment”). This judgment assumes familiarity with and adopts the same terminology employed in the Principal Judgment.
In summary, the Court concluded that the plaintiffs were entitled to specific performance of an oral agreement to purchase part of the defendants’ adjoining property. In so doing, the Court was satisfied that the acts of part performance on which the plaintiffs relied were unequivocally referable to a contract of the same nature as that alleged by the plaintiffs.
The plaintiffs now seek an order (originally foreshadowed in their Statement of Claim filed on 25 September 2017) that the first defendant pay the plaintiffs’ costs of the proceedings on an indemnity basis. The plaintiffs provided submissions in support of their application. On 24 May 2019, the Court directed the first defendant to provide written submissions addressing this issue of costs by 14 June 2019. The first defendant (who became unrepresented a short time before the final hearing on 13 May 2019) did not do so. On 1 July 2019 further time was given for the first defendant to provide written submissions. No written submissions, however, were provided by the extended…

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 Horswill v McClellan (No 2)

Details

AGLC: Horswill v McClellan (No 2) [2019] NSWSC 964
Case: [2019] NSWSC 964
Decision Date: 30 July 2019

CaseChat Overview and Summary

In the matter of Horswill v McClellan, the plaintiffs sought indemnity costs from the defendants in relation to a dispute over the sale of land. The plaintiffs claimed that the defendants had entered into an oral agreement to sell the property, and they sought specific performance of that agreement. The defendants denied the existence of such an agreement and defended the claim on various grounds. The case reached the court, which was required to determine whether the plaintiffs were entitled to indemnity costs and, if so, under what circumstances.

The central legal issue before the court was whether the first defendant's resistance to the plaintiffs' claim for specific performance of the alleged oral agreement had no real prospects of success. The plaintiffs argued that the first defendant's resistance was unreasonable because his evidence was materially similar to the plaintiffs' evidence, and he failed to substantiate certain claims in his Amended Defence. The court needed to assess whether the first defendant's resistance was indeed unreasonable and, if so, whether it warranted the award of indemnity costs.

In delivering its judgment, the court held that the first defendant's resistance was not unreasonable, even though his evidence was materially similar to the plaintiffs' evidence. The court found that the first defendant had provided a credible defence and had not acted unreasonably in resisting the plaintiffs' claim. As a result, the court ordered the first defendant to pay the plaintiffs' costs on the ordinary basis, denying the plaintiffs' application for indemnity costs. The court's decision was based on the assessment that the first defendant's resistance had real prospects of success, despite the similarities in the parties' evidence.

Orders