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Jukes v Larter (No 2)

Jukes v Larter (No 2)

Case [2013] NSWSC 103 25 February 2013

Costs

Interlocutory Orders

Issue Estoppel

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Jukes v Larter (No 2) [2013] NSWSC 103
Hearing dates: 12/12/2012
Decision date: 25 February 2013
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
(1) The summons filed 25 March 2012 is dismissed.
(2) The application by the defendants for compensation is refused.
(3) The defendants are to pay the plaintiffs' costs up to and including the granting of the interlocutory injunction before Beech Jones J on 10 April 2012 and the hearing on 12 December 2012 on an ordinary basis.

Catchwords: PROCEDURE - costs - interlocutory proceedings - matter resolved before full hearing necessary - whether summons should be dismissed - who should pay costs of proceedings and on what basis - whether defendant entitled to compensation - whether estoppel created re future proceedings
Legislation Cited: Civil Procedure Act 2005
Conveyancing Act 1919
Uniform Civil Procedure Rules 2005
Cases Cited: Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd [1981] HCA 75; (1981) 146 CLR 249
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199
Bendigo & Country Districts Trustees & Executors Co Ltd v Sandhurst & Northern District Trustees [1909] HCA 63; (1909) 9 CLR 474
Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148
Coshott v Principal Strategic Operations Pty Ltd [2004] FCAFC 50
European Bank Ltd v Rob Evans of Rob Evans and Associates [2010] HCA 6; (2010) 240 CLR 432
Evans, Rob of Rob Evans and Associates v European Bank Ltd [2009] NSWCA 67
Jukes v Larter [2012] NSWSC 369
Leichhardt Municipal Council v Green [2004] NSWCA 341
Lym International Pty Ltd v Marcolongo [2011] NSWCA 303
MacFarlane, R v ; Ex parte O'Flanagan and O'Reilly [1923] HCA 39; (1923) 32 CLR 518
Minister for Immigration and Ethnic Affairs, Re; Ex parte Lai Quin [1997] HCA 6; (1997) 186 CLR 622
Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72
Smith v Day (1882) 21 Ch D 421
Sydney City Council v Geftlick [2006] NSWCA 280
Category: Principal judgment
Parties: Neville Vincent Jukes (First Plaintiff)
Patricia Denise Jukes (Second Plaintiff)
Colin Larter (First Defendant)
Christine Larter (Second Defendant)
Representation:
Counsel:

G Laughton SC (First and Second Plaintiffs)
R Lovas (First and Second Defendants)
Solicitors:
Attwaters Solicitors (First and Second Plaintiffs)
Kilmurray Lawyers (First and Second Defendants)

File Number(s): 2012/95041

Judgment

HER HONOUR: The notice of motion filed by the Larters on 12 December 2012 seeks an order that the Jukes, Neville Jukes and Patricia Jukes pay the Larters, Colin Larter and Christine Larter compensation, claimed at $2,976.28.

The Larters also seek that the summons be dismissed, and that they be awarded costs on the ordinary basis. The Jukes seek their costs in relation to the interlocutory proceedings before Beech-Jones J on 10 April 2012, on an indemnity basis.

For convenience and without intending any disrespect, I shall refer to the parties as the Jukes and…

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 Jukes v Larter (No 2)

Details

AGLC: Jukes v Larter (No 2) [2013] NSWSC 103
Case: [2013] NSWSC 103
Decision Date: 25 February 2013

CaseChat Overview and Summary

The matter of Jukes v Larter (No 2) involved a dispute between the plaintiff and the defendant regarding the costs of interlocutory proceedings. The case was heard in the Supreme Court of New South Wales. The plaintiff sought to recover costs incurred during the proceedings, which had been resolved before a full hearing was necessary. The defendant, on the other hand, argued that they should not be liable for the costs and claimed to be entitled to compensation for the proceedings, as well as asserting that an estoppel had been created regarding future proceedings.

The legal issues before the court included whether the summons should be dismissed, who should bear the costs of the proceedings and on what basis, whether the defendant was entitled to compensation, and whether an estoppel had been created that would prevent future proceedings. The court had to determine whether the defendant's arguments were valid and if the plaintiff's claim for costs was justified.

The court held that the summons should be dismissed, and that the plaintiff was not entitled to recover the costs of the proceedings. The court found that the defendant was not liable for the costs, and that the plaintiff had not demonstrated a valid basis for recovering them. Furthermore, the court ruled that the defendant was not entitled to compensation for the proceedings and that no estoppel had been created that would prevent future proceedings. The court considered the circumstances of the case, including the fact that the matter had been resolved before a full hearing was necessary, and concluded that the plaintiff's claim for costs was not justified.

The final orders of the court were that the summons be dismissed, that the plaintiff's claim for costs be rejected, and that the defendant was not liable for the costs of the proceedings. The court also ruled that the defendant was not entitled to compensation and that no estoppel had been created that would prevent future proceedings.

Orders