Legal Research
Cases
Lawrence v Gunner; Gunner v Lawrence

Lawrence v Gunner; Gunner v Lawrence

Link copied

Case Copied 21 August 2015 11 min read

Contents

On this page

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Lawrence v Gunner; Gunner v Lawrence [2015] NSWSC 1229
Hearing dates: 21 August 2015
Decision date: 21 August 2015
Jurisdiction: Equity
Before: Stevenson J
Decision:
Plaintiffs’ claim dismissed; judgment for defendant/cross-claimant against plaintiffs/cross-defendants for $315,000 plus interest; proceedings earlier transferred to the Court from the CTTT to be remitted to NCAT; plaintiffs/cross-defendants to pay 95 per cent of the defendant/cross-claimant’s costs (other than the costs of preparation of affidavits of witnesses not called, not being affidavits prepared solely for interlocutory applications) such costs to be paid on an indemnity basis from 2 August 2013

Catchwords: PROCEDURE – final orders to give effect to earlier judgment - whether the proceedings earlier transferred to the Court from the CTTT should be remitted to NCAT; COSTS – defendant successful overall but not on all claims – whether the Court should make a proportional costs order – whether Court should make an order for indemnity costs where plaintiffs had no basis to bring the proceedings and were unreasonable not to accept Calderbank offer
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW)
Civil Procedure Act 2005 (NSW)
Consumer, Trader and Tenancy Tribunal Act 2001 (NSW)
Residential Tenancies Act 2010 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Aboriginal Housing Company Ltd v Kaye-Engel (No 3) [2014] NSWSC 718
Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344
Category: Costs
Parties: Wayne Lawrence (First Plaintiff/First Cross-Defendant)
Valerie Lawrence (Second Plaintiff/Second Cross-Defendant)
Frances Gunner (Defendant/Cross-Claimant)
Representation:
Counsel:
P E King (Plaintiffs/Cross-Defendants)
A Hourigan (Defendant/Cross-Claimant)
Solicitors:
The People’s Solicitors (Plaintiffs/Cross-Defendants)
Paton Hooke Lawyers (Defendant/Cross-Claimant)

File Number(s): SC 2012/277403

EX TEMPORE Judgment (REVISED)

I gave judgment in these proceedings on 16 July 2015: Lawrence v Gunner; Gunner v Lawrence [2015] NSWSC 944. I have now heard argument as to the orders that should be made to give effect to those reasons, including as to costs. I will use the same abbreviations in this judgment as I did in those reasons.

Possession of 134 Clontarf Street

At [494] to [525] of my 16 July 2015 judgment I dealt with Mr and Mrs Lawrence's entitlement to occupy 134 Clontarf Street. The background to the matter is that on 21 February 2012 Mrs Gunner commenced proceedings in the CTTT, seeking possession of that property. On 12 September 2012, with Mr and Mrs Lawrence's express consent, those proceedings were transferred to this Court pursuant to s 23 of the CTTT Act to be heard in conjunction with these proceedings (which had been commenced by Mr and Mrs Lawrence a week earlier, on 5 September 2012).
For the reasons I gave in my judgment of 16 July 2015, I have concluded that Mr and Mrs Lawrence have no entitlement to remain in possession of 134 Clontarf Street.
It follows that Mrs Gunner, as the owner of that property, is now entitled to possession of it.
However, Mr and Mrs Lawrence occupy 134 Clontarf Street pursuant to a…

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.

Keep reading for free

Create a free CaseChat account to read Lawrence v Gunner; Gunner v Lawrence and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] NSWSC 1229
Decision Date: 21 August 2015

CaseChat Overview and Summary

The proceedings before the court involved a dispute between the Lawrences and the Gunners, with the nature of the dispute being complex and multifaceted. The case was initially heard in the Civil and Administrative Tribunal of New South Wales (CTTT) and subsequently transferred to the Supreme Court of New South Wales. The Lawrences sought various remedies against the Gunners, while the Gunners counter-claimed for relief. The court was required to decide on several key legal issues, including whether the proceedings should be remitted back to the NCAT for further consideration, and whether the court should make a proportional costs order and an indemnity costs order given the circumstances of the case.

The court carefully considered the procedural history and the outcomes of the case. It found that while the Gunners were successful overall, they were not successful on all claims, leading to the consideration of a proportional costs order. The court further examined the conduct of the Lawrences in bringing the proceedings and their unreasonable refusal to accept a Calderbank offer, which is an offer made during litigation with a promise of costs consequences if the offer is not accepted and the offeror is ultimately successful. The court concluded that the proceedings should not be remitted back to the NCAT and that a proportional costs order was appropriate. Additionally, the court found that the Lawrences had no basis to bring the proceedings and were unreasonable in their conduct, warranting an order for indemnity costs.

The final orders of the court reflected its reasoning. The court dismissed the Lawrences' claims and ordered them to pay the Gunners' costs on a proportional basis. Furthermore, the court made an order for indemnity costs against the Lawrences due to their unreasonable conduct throughout the proceedings. This decision underscores the importance of procedural fairness and the consequences of unreasonable litigation conduct.

Orders