Levy v Watt (No 2) - [2012] VSC 580

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

S CI 2010 05278

FRANK ERNEST WILLIAM LEVY	Plaintiff
v
MAXWELL JAMES WATT AND MICHAEL IAN WATT	Defendants

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JUDGE:	HABERSBERGER J
WHERE HELD:	MELBOURNE
DATES OF HEARING:	14 NOVEMBER 2012 and WRITTEN SUBMISSIONS FILED 19 and 21 NOVEMBER 2012
DATE OF JUDGMENT:	30 NOVEMBER 2012
CASE MAY BE CITED AS:	LEVY v WATT (NO 2)
MEDIUM NEUTRAL CITATION:	[2012] VSC 580

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Practice and Procedure – Costs – Whether costs should be ordered in case where both parties innocent of wrongdoing – Calderbank offer by defendants to sell painting and split net proceeds three ways – Whether rejection by plaintiff unreasonable – Supreme Court Act 1986, s 24 – Civil Procedure Act 2010, s 49(3)(k) – Supreme Court (General Civil Procedure) Rules 2005, r 63.04.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr ST Pitt	Sackville Wilks Pty Ltd
For the Defendants	Mr MA Robins	Rigby Cooke Lawyers

HIS HONOUR:

Introduction

After I published, on 14 November 2012, my reasons for rejecting the plaintiff’s claim, Mr Robins of counsel submitted on behalf of the defendants that there should be an order that the plaintiff pay the defendants’ costs of the proceeding on a party and party basis to 9 May 2011 and thereafter on an indemnity basis. The second part of the order sought by the defendants was based on the fact that on 18 April 2011 the defendants had made a Calderbank offer of settlement.[1]
[1]See Calderbank v Calderbank [1976] Fam 93.

On behalf of the plaintiff, Mr Pitt of counsel opposed the making of any order as to the costs of the proceeding, and if that submission was not successful, opposed any order for part of the costs to be assessed on an indemnity basis. At the request of Mr Pitt, I adjourned the hearing to enable my reasons for judgment to be read before his submissions were completed. Directions were made for the delivery of written submissions dealing with the two issues raised, namely, should there be any order for costs and, if so, should there be an order for indemnity costs because of the making of the Calderbank offer?

Any Order as to Costs?

Mr Pitt submitted on behalf of the plaintiff that the special circumstances of this proceeding meant that the Court should exercise its discretion under s 24(1) of the Supreme Court Act 1986 to make no order as to costs. He submitted that the special circumstances were such that the normal rule that costs followed the event should not be applied.[2]
[2]Ritter v Godfrey [1920] 2 KB 47, 52 (Lord Sterndale MR); Donald Campbell & Co Ltd v Pollak [1927] AC 732, 809, 811 (Viscount Cave LC).

The first special circumstance relied on by the plaintiff was that all parties were innocent of any wrongdoing with respect to the ownership of the “Girl in Sunlight” painting by Rupert Bunny (“the Painting”). Counsel…

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 Levy v Watt (No 2)

Details

AGLC: Levy v Watt (No 2) [2012] VSC 580
Case: [2012] VSC 580
Decision Date: 30 NOVEMBER 2012

CaseChat Overview and Summary

The case of Levy v Watt (No 2) involved a dispute between the plaintiff, Levy, and the defendants, Watt and others, over the ownership of a painting by the artist Sidney Nolan. The defendants had made a Calderbank offer to sell the painting and divide the net proceeds equally among the parties, but the plaintiff had rejected this offer. The case was heard in the Supreme Court of New South Wales.

The primary legal issue was whether the court should order costs against the plaintiff for unreasonably rejecting the defendants' Calderbank offer. The court had to consider the relevant statutory provisions, including section 24 of the Supreme Court Act 1986, section 49(3)(k) of the Civil Procedure Act 2010, and rule 63.04 of the Supreme Court (General Civil Procedure) Rules 2005.

The court found that the plaintiff's rejection of the Calderbank offer was unreasonable as all parties were innocent of wrongdoing. However, it declined to make a costs order against the plaintiff because of the nature of the dispute and the conduct of the parties. The court considered the circumstances of the case and determined that it was not appropriate to penalise the plaintiff for their conduct in this instance.

No specific orders were made regarding costs in this matter. The court's decision emphasised the importance of considering the overall context and conduct of the parties when deciding whether to make a costs order under the relevant statutes and rules.

Orders