Huebner v Manage Your Super (SMSF Auditors) Pty Limited (No. 2)

[2022] NSWDC 278

District Court

New South Wales

Medium Neutral Citation:

Huebner v Manage Your Super (SMSF Auditors) Pty Limited (No. 2) [2022] NSWDC 278

Hearing dates:

3 May 2022

Date of orders:

3 May 2022

Decision date:

03 May 2022

Jurisdiction:

Civil

Before:

Neilson DCJ

Decision:

The defendant’s application is refused.

Catchwords:

CIVIL – COSTS – Application for indemnity costs – Defendant’s solicitors wrote to the Appellant in overly legal form and language – Unfair result to the unsuccessful Appellant if the application were granted.

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Calderbank v Calderbank [1975] 3 All ER 333

Huebner v Manage Your Super (SMSF Auditors) Pty Limited (No. 1) [2022] NSWDC 277

Texts Cited:

Nil.

Category:

Costs

Parties:

Appellant – Hans Huebner
Respondent - Manage Your Super (SMSF Auditors) Pty Limited

Representation:

Appellant
Self-represented
Respondent
Foley, J.

File Number(s):

2021/000272202-001

Publication restriction:

Nil.

Judgment

1. HIS HONOUR: This is an application by the successful Defendant in the matter of Huebner v Manage Your Super (SMSF Auditors) Pty Limited (No. 1) [2022] NSWDC 277 for indemnity costs against the Appellant. The Defendant relies on two letters sent by his instructing solicitors, the first on 10 December 2021 and the second on 27 April 2022. The letter of 10 December 2021 commences with this:

"In the interests of resolving this proceeding prior to trial, we have received instructions to make the following counter offer ('Offer'):

(a) The parties walk away and bear their own costs; and

(b) The parties enter into a deed of release substantially in the form attached to this correspondence."

2. The form of the deed is not attached. However, the letter, which is four pages long, has all told 28 numbered paragraphs, and the paragraph which I have quoted is that numbered [2]. It goes well beyond anything contemplated by the Uniform Civil Procedure Rules, and well beyond anything contemplated in Calderbank v Calderbank [1975] 3 All ER 333, which is referred to in paragraph numbered [24].

3. The letter of 27 April 2022 again makes a further offer agreeing to pay to the Appellant $2,364.56 inclusive of interest costs and taxation, if any, again on terms. That offer has 11 numbered paragraphs and, again, requires the parties to enter into a deed of release in the form attached. The form is not attached to the correspondence before me.

4. I am not persuaded that either of the letters would be intelligible to a non-legally qualified person in the position of Mr Huebner and his fellow trustees of HHH Superannuation Trust, nor am I persuaded that it would be in the interests of anybody that the order sought by the defendant be made. It would unnecessarily complicate the matter. Indemnity costs is already an area of the law which itself is unnecessarily complex at this stage. Permitting this behaviour would only encourage solicitors to write to unrepresented litigants as if they were lawyers.

5. The application is accordingly refused.

Decision last updated: 20 July 2022