Hundy v Turner - [2019] NSWSC 1881

Supreme Court

New South Wales

Medium Neutral Citation: Hundy v Turner [2019] NSWSC 1881
Hearing dates: On the papers
Date of orders: 20 December 2019
Decision date: 20 December 2019
Jurisdiction: Equity
Before: Darke J
Decision:
Gross sum costs order made in favour of the plaintiff in the sum of $40,500.

Catchwords: COSTS – specified gross sum costs order – where orders made by consent for the appointment of trustees for sale of property co-owned by plaintiff and defendant – defendant ordered to pay the plaintiff’s costs as agreed or assessed – where parties’ solicitors entered into negotiations concerning the plaintiff’s costs – where plaintiff’s solicitor experienced difficulties contacting the defendant’s solicitor – where delay by defendant’s solicitor contacting plaintiff’s solicitor – specified gross sum costs order made
Legislation Cited: Civil Procedure Act 2005 (NSW), s 98
Conveyancing Act 1919 (NSW), s 66G
Cases Cited: Boyd v Thorn (2017) 96 NSWLR 390; [2017] NSWCA 210
Calderbank v Calderbank [1976] Fam 93
Ghougassian v Fairfax Community Newspapers Pty Ltd [2015] NSWCA 307
Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23
In the matter of GTH Equipment [2017] NSWSC 1816
James v Australian and New Zealand Banking Group Limited [2016] NSWSC 833
Stoddart (NSW) Pty Ltd v Kellyville Building Pty Ltd [2019] NSWSC 1480
Category: Costs
Parties: Stephen John Hundy (Plaintiff)
Tracey Lee-Ann Turner (Defendant)
Representation:
Counsel:
Mr P Afshar (Plaintiff)
Solicitors:
Elringtons Lawyers (Plaintiff)
Joe Weller & Associates (Defendant)

File Number(s): 2018/325818
Publication restriction: Nil

Judgment

This is an application by the plaintiff for a specified gross sum costs order in respect of the costs of the proceedings. The plaintiff seeks an order pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW) that the defendant pay the plaintiff’s costs of the proceedings (including this application) in a total gross sum of almost $43,000.
The plaintiff was appointed as the trustee in bankruptcy of the estate of John McLaughlin. On 7 December 2018, Kunc J made orders appointing the plaintiff and Christopher Darin as trustees for the sale of certain land in Tallong, New South Wales, pursuant to s 66G of the Conveyancing Act 1919 (NSW). The land was formerly co-owned by Mr McLaughlin and the defendant. His Honour also made orders on that occasion that the defendant pay the plaintiff’s costs of the proceedings.
On 4 October 2019, following a period of negotiation between the solicitor acting for the plaintiff and the solicitor acting for the defendant in relation to the costs to be paid by the defendant, the plaintiff filed the present application. The Court made directions for the filing and service of any affidavits and for the provision of written submissions in respect of the application, with the view to the matter being determined on the papers.
The plaintiff relies upon the following affidavits:

Affidavits of the plaintiff affirmed on 23 October 2018 and 9 September 2019;

Affidavits of Mitchell Evelyn affirmed on 17 September 2019 and 31 October 2019.

The defendant did…

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 Hundy v Turner

Details

AGLC: Hundy v Turner [2019] NSWSC 1881
Case: [2019] NSWSC 1881
Decision Date: 20 December 2019

CaseChat Overview and Summary

The parties involved in Hundy v Turner were Hundy, the plaintiff, and Turner, the defendant. The dispute arose from the co-ownership of a property and the subsequent orders made for the appointment of trustees to sell the property. The case was heard in a court in Australia. The plaintiff sought costs from the defendant following the appointment of trustees and the sale of the property, as per the orders made by consent. The defendant had been ordered to pay the plaintiff's costs as agreed or assessed.

The central legal issue in this case was whether the court should grant a specified gross sum costs order in favour of the plaintiff. The court needed to determine the appropriate amount of costs that the defendant should pay to the plaintiff. This involved considering the negotiations between the parties' solicitors, the difficulties experienced by the plaintiff's solicitor in contacting the defendant's solicitor, and the delay caused by the defendant's solicitor in responding to the plaintiff's solicitor.

The court examined the evidence presented and found that the plaintiff's solicitor had experienced difficulties in contacting the defendant's solicitor and that there was a delay in the defendant's solicitor contacting the plaintiff's solicitor. The court considered these factors and the negotiations between the parties' solicitors in determining the appropriate amount of costs to be awarded. Ultimately, the court granted a specified gross sum costs order in favour of the plaintiff, awarding the plaintiff the costs as agreed or assessed.

The court's decision in Hundy v Turner highlights the importance of effective communication between parties' solicitors when negotiating costs in co-ownership disputes. The court's consideration of the difficulties experienced by the plaintiff's solicitor and the delay caused by the defendant's solicitor in responding to the plaintiff's solicitor demonstrates the court's willingness to take into account the practicalities of cost negotiations. The final orders in this case awarded the plaintiff the costs as agreed or assessed, providing a clear outcome for the parties involved.

Orders