Jingalong Pty Ltd v Todd - [2016] NSWSC 715

Supreme Court

New South Wales

Medium Neutral Citation: Jingalong Pty Ltd v Todd & Anor [2016] NSWSC 715
Hearing dates: 9 March 2016
Decision date: 06 June 2016
Jurisdiction: Equity
Before: White J
Decision:
1. Order that the plaintiff pay the defendants’ costs of the proceedings after 12 March 2013 on the ordinary basis, other than costs of and incidental to the hearing on 9 March 2016.
2. Refuse the first defendant’s application that the second defendant pay its costs.
3. Order that the first and second cross-claims be dismissed.
4. Order that the first defendant pay the second defendant’s costs of and incidental to the hearing on 9 March 2016.

Catchwords: PRACTICE AND PROCEDURE — costs — conduct of first defendant brought about the litigation — settlement agreement reached between the parties — defendants ready and willing to perform obligations under settlement agreement — plaintiff failed to perform obligations under settlement agreement — settlement agreement not completed — plaintiff to pay defendants’ costs of the proceedings after the date of the settlement agreement — first defendant to pay second defendant’s costs of the hearing on costs
Legislation Cited: Real Property Act 1900 (NSW)
Cases Cited: Jingalong Pty Limited v Todd [2015] NSWCA 7
Neeta (Epping) Pty Ltd v Phillips [1974] HCA 18; 131 CLR 286
Jingalong Pty Ltd v Todd [2016] NSWCA 131
Ritter v Godfrey [1920] 2 KB 47
Donald Campbell & Co Ltd v Pollack [1927] AC 732
Category: Costs
Parties: Gregory George Todd (Plaintiff)
Jingalong Pty Limited (1st Defendant)
Brett Pernice (2nd Defendant)
Representation:
Counsel:
C Ward SC with S Kanagaratnam (1st Defendant)
A Moutasallem (2nd Defendant)
Solicitors:
n/a (Plaintiff)
A L Wunderlich & Co (1st Defendant)
Hancock Alldis & Roskov (2nd Defendant)

File Number(s): 2012/344643

Judgment

HIS HONOUR: This is an application by the first defendant, Jingalong Pty Ltd. The application is made against the plaintiff, Mr Gregory Todd, and the second defendant, Mr Brett Pernice.
The proceedings were heard by Kunc J on 25 and 28 October and 1 November 2013. His Honour helpfully summarised the nature of his proceedings and his conclusions as follows:

“1   The plaintiff (‘Mr Todd’) owned some land at Nowra. He wanted to sub-divide his land and sell it, but did not have the resources to complete the subdivision. In 2003 he made a verbal agreement to sell some of the land to the second defendant (‘Mr Pernice’) for $300,000 payable by instalments on demand.
2   In 2005 Mr Todd sold his land to a Mr and Mrs Poulton upon terms which included a provision that when they had completed the subdivision, one of the lots (‘Lot 1’) would be sold back to him or his nominee by Mr and Mrs Poulton for $1.00. Lot 1 was the land Mr Todd had agreed to sell to Mr Pernice.
3   Mr and Mrs Poulton were themselves unable to complete the subdivision of the land they had bought from Mr Todd. They entered into a joint venture agreement…

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.

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Details

Case: [2016] NSWSC 715
Decision Date: 06 June 2016

CaseChat Overview and Summary

The case of Jingalong Pty Ltd v Todd was heard by the Supreme Court of New South Wales. Jingalong Pty Ltd, the plaintiff, sought to recover costs incurred in proceedings against two defendants, Todd and another party. The dispute arose from a settlement agreement that was reached but not completed. The plaintiff claimed that the defendants had failed to perform their obligations under the settlement agreement, leading to the ongoing litigation. The defendants, in turn, argued that the plaintiff had also failed to fulfill its part of the agreement, and sought an order for costs against the plaintiff.

The legal issues before the court included whether the plaintiff was entitled to recover costs from the defendants after the date of the settlement agreement, and whether the first defendant should bear the costs of the second defendant for the hearing on costs. The court had to determine the circumstances under which costs could be awarded post-settlement and whether the plaintiff's failure to perform under the agreement justified an order for costs against it. Additionally, the court needed to decide whether the first defendant's conduct in relation to the second defendant warranted an order for costs between them.

In resolving these issues, the court found that the conduct of the first defendant had significantly contributed to the failure of the settlement agreement to be completed. The court held that the plaintiff was not entitled to recover costs from the defendants after the date of the settlement agreement, as the plaintiff had also failed to perform its obligations. However, given that both defendants were ready and willing to perform their obligations under the settlement agreement, the court ordered the plaintiff to pay the defendants' costs of the proceedings after the date of the settlement agreement. Furthermore, the court ordered the first defendant to pay the second defendant's costs of the hearing on costs, reflecting the first defendant's conduct in relation to the second defendant.

The final orders of the court included the plaintiff paying the defendants' costs of the proceedings from the date of the settlement agreement, and the first defendant paying the second defendant's costs of the hearing on costs. This outcome emphasised the importance of both parties fulfilling their obligations under a settlement agreement and the consequences of failing to do so.

Orders