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

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

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."

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].
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.
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.
The application is accordingly refused.

CaseChat Overview and Summary

In the Federal Court, the matter of Huebner v Manage Your Super (SMSF Auditors) Pty Limited (No. 2) involved the Appellant, Huebner, and the Respondent, Manage Your Super (SMSF Auditors) Pty Limited, a company specialising in auditing self-managed superannuation funds. The core dispute in this case revolved around an application by the Respondent for indemnity costs, following a previous decision where the Appellant was ordered to pay the Respondent’s costs. The Appellant contested this application on the grounds that it would result in an unfair outcome for them, considering the Respondent’s solicitors had communicated with the Appellant in an overly legalistic and complex manner.

The primary legal issue the court needed to resolve was whether the Respondent was entitled to indemnity costs, given the Appellant's contention that such an award would be unfair due to the Respondent's solicitors' communication style. The Appellant argued that the complex and legalistic nature of the correspondence was inappropriate and contributed to the difficulties in the case. The court had to weigh the fairness of awarding indemnity costs against the Appellant’s argument that the nature of the communication from the Respondent’s solicitors was a significant factor in the case's complexity.

The Federal Court, in its judgment, determined that the Respondent’s application for indemnity costs should be refused. The court recognised that the overly legalistic communication from the Respondent’s solicitors had indeed contributed to the difficulties encountered by the Appellant. The court held that it would be unjust to award indemnity costs to the Respondent, given the circumstances. Consequently, the court refused the Respondent’s application for indemnity costs, finding that it would result in an unfair outcome for the Appellant.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

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.