Joudo v Joudo (No 2) - [2024] NSWSC 469

Supreme Court

New South Wales

Medium Neutral Citation: Joudo v Joudo (No 2) [2024] NSWSC 469
Hearing dates: On the papers, written submissions 17 April 2024
Date of orders: 24 April 2024
Decision date: 24 April 2024
Jurisdiction: Equity
Before: Pike J
Decision:
(1)   The costs of the application for leave to amend the cross-claim be costs in the cause.
(2)   The plaintiff pay the defendant’s costs of the statement of claim, as assessed or agreed.
(3)   The cross-defendant pay the cross-claimants’ costs of the amended cross-claim, as assessed or agreed.

Catchwords:
PRACTICE AND PROCEDURE – costs – determination – whether reason for departing from usual rule – Calderbank offer – whether costs should be paid on indemnity basis by reason of rejection of offer – no question of principle

Legislation Cited:
Civil Procedure Act 2005 (NSW)

Cases Cited:
E Group Security Pty Ltd v Chief Commissioner of State Revenue (No 2) [2021] NSWSC 1296
Hazeldene’s Chicken Farm v Victorian WorkCover Authority (No 2) (2005) 13 VR 435, [2005] VSCA 298
Jones v Bradley (No 2) [2003] NSWCA 258
Miwa Pty Limited v Siantan Properties Pte Limited (No 2) [2011] NSWCA 344
SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323

Texts Cited:
Nil

Category: Costs
Parties: Ravina Joudo (Plaintiff/Cross-Defendant)
Maria Joudo (Defendant/First Cross-Claimant)
Ronnie Joudo (Second Cross-Claimant)
Representation:
Counsel:
FFF Salama and B Flaherty (Plaintiff/Cross-Defendant)
M Thompson (Defendant/Cross-Claimants)
Solicitors:
Ashley, Francina, Leonard & Associates (Plaintiff/Cross-Defendant)
David Legal (Defendant/Cross-Claimants)

File Number(s): 2022/00290628
Publication restriction: Nil

JUDGMENT

On 12 March 2024, I delivered judgment in these proceedings: see Joudo v Joudo [2024] NSWSC 232 (Primary Judgment). In substance, I determined that the plaintiff’s claim failed and the cross-claimants’ claim should be upheld.
I directed the parties to confer and to seek to agree on the occupation rent to be paid by the cross-claimants and orders otherwise to give effect to the Primary Judgment and to deal with costs.
The parties were able to agree the final orders, save for costs, and on 28 March 2024, I made the following orders by consent:

1.   ORDER, that the Plaintiff’s Statement of Claim filed on 27 September 2022 against the Defendant be dismissed.
2.   ORDER, that the Cross Claimants Amended Cross Claim served on 30 January 2024 against the Plaintiff/Cross Defendant be upheld.
3.   DECLARE that, on and from the making of these Orders, the Plaintiff holds the sum of $598,730.59, representing the net proceeds of the sale of the property at 25 Robey Avenue, Middleton Grange NSW 2171 (the Property), on Constructive Trust to repay each of the Cross-Claimants and herself, their and her contributions to the Joint Endeavour as defined below and, as to the residue for them both in equal shares.
For the purposes of this Declaration, the contributions shall be as follows:
a)   $305,610.26 for the Plaintiff/Cross-Defendant.
b)   $293,120.33 for the Cross-Claimants.
This Declaration shall be conditional upon the Cross-Claimants’ accepting an obligation to make allowances in favour of the Plaintiff for:
i)   The…

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 Joudo v Joudo (No 2)

Details

AGLC: Joudo v Joudo (No 2) [2024] NSWSC 469
Case: [2024] NSWSC 469
Decision Date: 24 April 2024

CaseChat Overview and Summary

The matter of Joudo v Joudo (No 2) was heard in the Family Court of Australia. The case involved a dispute between the parties over costs. The wife, the applicant, sought costs from the husband on an indemnity basis due to his rejection of her Calderbank offer. The husband opposed the application, arguing that there was no question of principle that should result in indemnity costs being awarded.

The legal issues before the court were whether the husband's rejection of the Calderbank offer was a reason for departing from the usual rule of costs following a trial, and whether the husband should pay the wife's costs on an indemnity basis because of the rejection. The court considered the principles surrounding Calderbank offers and indemnity costs, and the circumstances of the case.

The court held that there was no question of principle that would justify awarding indemnity costs against the husband for rejecting the Calderbank offer. The court noted that while a Calderbank offer could be a factor in determining costs, it was not the only factor, and the court must consider all relevant circumstances. The court found that the husband's rejection of the offer was not unreasonable, and that the wife's costs were not excessive. The court concluded that the husband should not be required to pay the wife's costs on an indemnity basis.

No further orders were made by the court.

Orders