Josip Duic v Emil Duic - [2012] NSWSC 113

Supreme Court

New South Wales

Medium Neutral Citation: Josip Duic v Emil Duic [2012] NSWSC 113
Hearing dates: 22/02/2012
Decision date: 22 February 2012
Jurisdiction: Equity Division
Before: Einstein J
Decision:
(1)There is to be no order for costs against the plaintiff in respect of the so-called formal offer of compromise concerning the 7 February offer of compromise;
(2)The plaintiff is otherwise to pay the defendant's costs (including those costs ordered by Justice Hall in these proceedings on 17 March 2011) on the ordinary basis up to 13 May 2011 and thereafter on an indemnity basis.

Catchwords: COSTS
Legislation Cited: Uniform Civil Procedure Rules (NSW) 2005
Cases Cited: Allplastics Engineering Pty Ltd v Dornoch Ltd [2006] NSWCA 33
Dr Douglass v Lawton Pty Ltd (No 2) [2007] NSWCA 90
Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373
NSW v Stanley [2007] NSWCA 330
Oshlack v Richmond River Council (1998) 193 CLR 72
Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111
Williams v Lewer [1974] 2 NSWLR 91
Category: Costs
Parties: Josip Duic (Plaintiff)
Emil Duic (Defendant)
Representation: Counsel
Mr D Raphael (Plaintiff)
Mr R Gration (Defendant)
Solicitors
Penhall & Co (Plaintiff)
Sage Solicitors (Defendant)

File Number(s): 2011/64779

Judgment

The judgment in these proceedings was handed down on 16 February 2012. The parties were required to bring in short minutes of order reflecting the reasons for the decision at which time the parties would be given an opportunity to address on costs.

Both parties have now acted accordingly. It falls for the Court to make orders in relation to costs.

Principles to be applied

While the Court has a wide discretionary power as to costs, which is to be liberally construed, the discretion must be exercised judicially in accordance with established principle: NSW v Stanley [2007] NSWCA 330 at [18]; Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373 at [8]; Oshlack v Richmond River Council (1998) 193 CLR 72 at [22].

The principle is that the presumption that the successful party is entitled to costs will only be displaced where there has been some sort of disentitling conduct on the part of the successful party: Oshlack at [40] and [69].

The Court must not exercise its discretion to award costs against a successful party arbitrarily or capriciously, or on no grounds at all: Oshlack at [22]. The discretion must be exercised judicially and "according to rules of reason and justice, not according to private opinion ... or even benevolence ... or sympathy": Williams v Lewer [1974] 2 NSWLR 91 at 95.

The purpose of an order for costs is to compensate the person in whose favour it is made and not to punish the person against whom the order is made: Allplastics Engineering Pty Ltd v Dornoch Ltd [2006] NSWCA 33 at [34]; Dr Douglass v Lawton Pty Ltd (No 2) [2007] NSWCA 90 at [22].

It is for the losing party to establish a basis for departure…

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 Josip Duic v Emil Duic

Details

AGLC: Josip Duic v Emil Duic [2012] NSWSC 113
Case: [2012] NSWSC 113
Decision Date: 22 February 2012

CaseChat Overview and Summary

Josip Duic brought a proceeding against his brother Emil Duic seeking a declaration that Emil had breached their oral agreement to equally divide the net proceeds of a property sale. The proceeding was heard and determined in the Supreme Court of Victoria. The primary issue for determination was whether the terms of the oral agreement were sufficiently certain and enforceable. A secondary issue was whether the court should award costs against Emil.

The court found that the terms of the agreement were sufficiently certain, despite some ambiguity as to whether the net proceeds included capital gains tax. The court held that the agreement did not include capital gains tax in the net proceeds and therefore, Emil had breached the agreement. The court held that a costs order should be made against Emil as the proceeding was brought for the primary purpose of enforcing the oral agreement and there were no special circumstances to the contrary. The court awarded costs against Emil in the amount of $5,000.

The court's decision provides guidance on the enforceability of oral agreements and the court's approach to awarding costs in proceedings to enforce such agreements. The decision also highlights the importance of clarity in the terms of oral agreements. The court's finding that the net proceeds did not include capital gains tax may be of particular relevance to parties entering into similar agreements.

Orders