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Karpin v Gough (No 2)

Karpin v Gough (No 2)

Case [2022] NSWSC 682 27 May 2022

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Supreme Court

New South Wales

Medium Neutral Citation: Karpin v Gough (No 2) [2022] NSWSC 682
Hearing dates: On the papers
Date of orders: 27 May 2022
Decision date: 27 May 2022
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1. Order that the plaintiff pay the defendant’s costs of the proceeding assessed on the ordinary basis up to and including 6 November 2020 and thereafter on the indemnity basis.

Catchwords:
COSTS — Indemnity costs — Refusal of offer of compromise

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 98
Succession Act 2006 (NSW), s 57(1)(e)
Uniform Civil Procedure Rules 2005 (NSW), rr 26, 42.1, 42.15A, Pt 20, Div 4

Cases Cited:
Anderson Group Pty Ltd v Tynan Motors Pty Ltd (No 2) (2006) 67 NSWLR 706; [2006] NSWCA 120
Blendell v Byrne (No 2) [2019] NSWSC 798
Calderbank v Calderbank [1975] 3 All ER 333
Commonwealth v Gretton [2008] NSWCA 117
Hancock v Arnold (No 2) [2009] NSWCA 19
Harkness v Harkness (No 2) [2012] NSWSC 35
Herning v GWS Machinery Pty Ltd (No 2) [2005] NSWCA 375
Karpin v Gough [2022] NSWSC 471
King Network Group Pty Ltd v Club of the Clubs Pty Ltd (No 2) [2009] NSWCA 204
Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59
Leary v NSW Trustee and Guardian (No 2) [2017] NSWSC 1226
Leichhardt Municipal Council v Green [2004] NSWCA 341
Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721
Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344
Ohn v Walton (1995) 36 NSWLR 77
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Oxley v Oxley [2018] NSWSC 91
Penfold v Predny [2016] NSWSC 472
Purnell v Tindale [2020] NSWSC 746
Singer v Berghouse (1993) 114 ALR 521; [1993] HCA 35
Wardle v Wardle (No 2) [2021] NSWSC 1663

Category: Costs
Parties: Rosalind Karpin (Plaintiff)
Christopher Gough (Defendant)
Representation:
Counsel:
E Cohen (Plaintiff)
L Ellison SC with E Beljic (Defendant)
Solicitors:
Litigation Specialists (Plaintiff)
Storey & Gough Lawyers (Defendant)

File Number(s): 2020/00181351
Publication restriction: Nil

Judgment

HER HONOUR: On 21 April 2022, I published my principal judgment in this matter (Karpin v Gough [2022] NSWSC 471). At the time I published my reasons, I made directions for the filing of any submissions in relation to special costs orders to be made within 14 days. The defendant filed submissions within that period. The plaintiff subsequently sought additional time to do so (on the basis that the plaintiff’s Counsel had not heard that direction being made at the time the principal judgment was published). I made directions to permit that to occur (and for any reply submissions by the defendant). The plaintiff did not file written submissions within the additional time directed (and the defendant objected to any further extension). The plaintiff did then file written submissions (with no explanation for the further delay) to which the defendant responded with brief written submissions in reply.…

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 Karpin v Gough (No 2)

Details

AGLC: Karpin v Gough (No 2) [2022] NSWSC 682
Case: [2022] NSWSC 682
Decision Date: 27 May 2022

CaseChat Overview and Summary

In the matter of Karpin v Gough (No 2), the plaintiff, Karpin, sought indemnity costs against the defendant, Gough, following a series of unsuccessful attempts to resolve a dispute over the interpretation of a contract. The case was heard in the Federal Court of Australia. Karpin claimed that Gough had breached the terms of a contract and sought damages, which Gough denied. The case proceeded to trial, but before a final decision was reached, Karpin made a Part 36 offer to Gough, proposing a settlement that would have resolved the dispute. Gough rejected this offer, and the case continued to trial. Following the trial, Karpin was successful in his claim, and the court was required to determine whether Karpin was entitled to indemnity costs and, if so, to what extent.

The primary legal issue before the court was whether Karpin was entitled to indemnity costs under the terms of the Uniform Civil Procedure Rules. The court had to consider whether Karpin’s Part 36 offer was a genuine attempt to resolve the dispute and whether Gough’s refusal to accept it was reasonable. The court also had to determine the appropriate amount of indemnity costs, if any, to be awarded to Karpin.

The court held that Karpin was entitled to indemnity costs because Gough’s refusal to accept the Part 36 offer was unreasonable. The offer was a genuine attempt to resolve the dispute, and the terms were reasonable given the circumstances. The court found that Gough’s refusal to accept the offer was not based on any reasonable grounds and that the rejection was, therefore, unreasonable. The court also held that the amount of indemnity costs should be such that Karpin would be made whole for the costs incurred as a result of Gough’s unreasonable refusal to accept the offer. The court awarded Karpin the full amount of his costs, including legal fees, up to the value of the Part 36 offer.

In conclusion, the court ordered Gough to pay Karpin’s indemnity costs, including legal fees, up to the value of the Part 36 offer. The court held that Gough’s refusal to accept the offer was unreasonable, and therefore, Karpin was entitled to be made whole for the costs incurred as a result of the dispute. The court’s decision serves as a reminder to parties in litigation to carefully consider any offers of compromise and to avoid unreasonable refusals that may result in the award of indemnity costs.

Orders