Hughes v Sangster (No 2)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Hughes v Sangster (No 2)

Citation:

[2019] ACTSC 202

Hearing Date:

1 August 2019

DecisionDate:

1 August 2019

Before:

Mossop J

Decision:

See [16]

Catchwords:

PROCEDURE – COSTS – Calderbank offer by plaintiff rejected – subsequent offers also rejected – defendant’s rejection of offers unreasonable – defendant to pay plaintiff’s costs on a solicitor and client basis from the date the Calderbank offer was made – quarantining of the proceeds of the sale of a house to which the defendant would otherwise be entitled to in order to preserve the defendant’s costs obligations.

Legislation Cited:

Civil Law (Property) Act 2006 (ACT), s 244

Trustee Act 1925 (ACT), ss 70, 79

Cases Cited:

Hughes v Sangster [2019] ACTSC 178

Calderbank v Calderbank [1975] 3 All ER 333
Jet West Ltd v Haddican [1992] 2 All ER 545; 1 WLR 487
Kain v Mobbs(No 2) [2008] NSWSC 599
Leichhardt Municipal Councilv Green [2004] NSWCA 341

Ofria v Cameron(No 2) [2008] NSWCA 242

Parties:

Christina Ella Hughes by her Guardian and Manager Warwick Samuel Hughes (Plaintiff)

Martell Justine Sangster (Defendant)

Representation:

Counsel

JA Rose (Plaintiff)

DA Hassall (Defendant)

Solicitors

Bradley Allen Love Lawyers (Plaintiff)

Legal on London (Defendant)

File Number:

SC 478 of 2017

MOSSOP J:

Introduction

1. This matter was listed before me today for the making of final orders, including the determination of the question of costs.  The making of orders was largely uncontroversial in light of the reasons that I had given on 26 July 2019.

Costs

1. The plaintiff sought costs on a more favourable than usual basis.  She sought costs on a party and party basis for the period prior to 1 June 2017 and thereafter on a solicitor and client basis, or alternatively, on a party and party basis up until 8 April 2019 and thereafter on a solicitor and client basis.  She also seeks the preservation of the defendant’s share of the proceeds of sale of the Nicholls property so that they are available to meet the costs obligations of the defendant.

1. The better than usual cost orders are based principally upon two offers made to resolve the proceedings.  The first is an offer dated 1 June 2017 and the second is an offer dated 8 April 2019.  Notwithstanding that these were the offers relied upon, the whole of the correspondence in relation to settlement was put into evidence and this includes further offers and correspondence.  In the circumstances, it is only necessary to refer in detail to the offer of 1 June 2017.

1. As the chronology set out in my earlier reasons at [8]-[37] indicates, the offer of 1 June 2017 predates the commencement of proceedings.  The letter refers to previous correspondence between the parties in relation to settlement that occurred in 2013, that is, prior to the appointment of Warwick Hughes as a guardian and manager for the plaintiff.  It identifies that Mr Hughes was appointed as guardian and manager on 10…