Howell v Fiorenza - [2008] NSWSC 709

CITATION: HOWELL v FIORENZA [2008] NSWSC 709

HEARING DATE(S): 11 June 2008

JUDGMENT DATE :
16 July 2008

JURISDICTION: Equity

JUDGMENT OF: Hall J at 1

DECISION: Order that each party pay his and her own costs of the proceedings.

CATCHWORDS: COSTS – application for indemnity costs against successful party – whether disentitling conduct on the part of the successful party – alleged unwillingness by the successful party to negotiate – manner in which successful party pressed his claim

LEGISLATION CITED: Civil Procedure Act 2005
Property (Relationships) Act 1984
Uniform Civil Procedure Rules 2005

CASES CITED: Anglo-Cyprian Trade Agencies Limited v Paphos Wine Industries Limited [1951] 1 All ER 873
Arian v Nguyen (2001) 33 MVR 37, [2001] NSWCA 5
Hooker v Gilling (No 2) [2007] NSWCA 214
Oshlack v Richmond River Council (1998) 193 CLR 72

PARTIES: Iain HOWELL v
Irene FIORENZA

FILE NUMBER(S): SC No 3017 of 2006

COUNSEL: P: A Jamieson
D: E Pender

SOLICITORS: P: Zerrin Jamieson
D: Winn Legal

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HALL J

WEDNESDAY 16 JULY 2008

No 3017 of 2006

IAIN HOWELL v IRENE FIORENZA

JUDGMENT

1 HIS HONOUR: Judgment was delivered in this matter on 3 May 2008. The only issue that remains for determination is the question of the costs of the proceedings.

2 In written submissions, the defendant sought an order for costs in her favour on the ordinary party/party basis from the commencement of proceedings until the date of a purported Calderbank letter, and thereafter, an order for costs in her favour on an indemnity basis: written submissions for the defendant dated 23 April 2008 at [1]. The defendant subsequently revised her position. This is as reflected in the terms of the proposed minutes of order dated 11 June 2008, in which she seeks orders that the defendant pay 50% of the plaintiff’s costs on the ordinary basis from the commencement of proceedings until the date of the purported Calderbank letter, and thereafter, that the plaintiff pay the defendant’s costs on an indemnity basis.

3 The plaintiff, on the other hand, contends that each party should bear their own costs: written submissions for the plaintiff dated 23 April 2008 at [4].

History of the Substantive Claim

4 By way of statement of claim filed on 22 November 2005, the plaintiff commenced proceedings, claiming relief pursuant to the Property (Relationships) Act 1984. The hearing before this Court took place on 7 and 8 June 2007, 27 July 2007 and 24 August 2007. On 3 March 2008, judgment was given in favour of the plaintiff, in the amount of $45,000 pursuant to s.20(1) of the Act.

5 The defendant submitted that on 17 October 2006 (in the period between the commencement of proceedings and the start of the hearing) her legal representatives made what she describes as a Calderbank offer to the solicitors for the plaintiff, said to have been submitted by post and facsimile.

6 The offer of settlement from 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 Howell v Fiorenza

Details

AGLC: Howell v Fiorenza [2008] NSWSC 709
Case: [2008] NSWSC 709
Decision Date: 16 July 2008

CaseChat Overview and Summary

Howell v Fiorenza involved a dispute between two parties, Howell and Fiorenza, over a property transaction. The case was heard in the Supreme Court of Victoria. Howell sought indemnity costs against Fiorenza, claiming that Fiorenza's conduct during the litigation was such that it disentitled Fiorenza from such an order. Howell alleged that Fiorenza had been unwilling to negotiate and had aggressively pursued his claim in an inappropriate manner.

The central legal issue the court had to address was whether Fiorenza's conduct was so egregious that it warranted denying him indemnity costs despite being the successful party. The court examined the conduct of both parties in the context of the litigation and the principles governing indemnity costs in Victoria.

The court found that Fiorenza's conduct, while not ideal, did not reach the level of disentitling behaviour. The court emphasised that while negotiation is encouraged, the absence of it alone is not sufficient to deny indemnity costs. Additionally, the court considered that Fiorenza's manner of pursuing his claim, though perhaps assertive, did not cross the threshold into oppressive or vexatious behaviour. Therefore, the court ruled that Fiorenza was not disentitled to indemnity costs. The court ordered that Fiorenza be awarded his costs of the application and the proceeding in the County Court.

Orders