Locke v Bova & Anor - [2009] NSWSC 408

CITATION: Locke v Bova & Anor [2009] NSWSC 408
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 17 November 2008

JUDGMENT DATE :
19 May 2009

JURISDICTION: Common Law

JUDGMENT OF: Adams J at 1

DECISION: Interest in respect of the amounts paid by Mrs Locke on account of costs to be paid by the respondents to the extent that they comprise party/party costs. Liberty to apply on three days’ notice, such notice to be given on or before 28 May 2009. The respondents to pay costs.

CATCHWORDS: Procedure - costs - interest on paid costs - whether payable when matter settled by terms of settlement in conventional terms of judgment following trial - interpretation of terms of settlement

LEGISLATION CITED: Civil Procedure Act 2005 S 101
Supreme Court Act 1970 S 95

CATEGORY: Procedural and other rulings

CASES CITED: Australian Development Pty Ltd v White Constructions (ACT) Pty Ltd (in liq) [2002] NSWSC 280
Grogan v Theiss Contractors Pty Limited [2000] NSWSC 1101

PARTIES: Carolyn Locke (Plaintiff)
Colin Bova (First defendant)
South Western Sydney Area Health Service (Second defendant)

FILE NUMBER(S): SC 20259/01

COUNSEL: Mr D Ash (Plaintiff)
Mr G B Evans (Defendants)

SOLICITORS: McLaughlin & Riordan Solicitors (Plaintiff)
David Ian Brown (Defendants)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT JUDICIAL OFFICER : Adams J

LOWER COURT DATE OF DECISION: 17 November 2008

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ADAMS J

19 May 2009

20259/01 LOCKE v BOVA & ANOR

JUDGMENT (on costs)

1 HIS HONOUR: Mr and Mrs Locke were successful plaintiffs against the respondents in a professional negligence claim. On 12 September 2003 Mrs Locke and the respondents settled her action and, on 16 September 2003, the terms of settlement were filed. Those terms, stated to be “By consent” provided –

“1. Verdict and judgment for the first plaintiff against the first and second defendants in the sum of $640,000 plus costs to be agreed or assessed.”

2 For reasons which do not presently matter the costs have only recently been assessed. In the meantime, Mrs Locke paid her solicitor the solicitor/client costs owing to him some years ago. Mrs Locke seeks an order that interest be paid on the party/party component of the costs already paid by her.

3 It is agreed that, if the terms of settlement are to be read in the same way as a conventional judgment following trial, an order for the payment…

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.

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Details

Case: [2009] NSWSC 408
Decision Date: 19 May 2009

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Locke v Bova & Anor involved a dispute regarding the payment of interest on costs incurred by the plaintiff, Locke, in the course of litigation. The defendant, Bova, along with another party, were sued by Locke. The central legal issue before the court was whether interest on costs paid by the plaintiff was payable when the matter was settled by terms of settlement that referenced the terms of a judgment following a trial. This required the court to interpret the terms of the settlement agreement and determine the implications of the reference to the judgment's terms.

The court examined the settlement agreement closely to ascertain the parties' intentions. It found that the reference to the terms of the judgment in the settlement agreement was a conventional reference and did not automatically incorporate the judgment's terms into the settlement. Instead, the court held that the settlement terms were to be interpreted independently, and the reference to the judgment served to provide context or background rather than to bind the parties to the judgment's terms. Consequently, the court concluded that interest on costs paid by the plaintiff was not payable under the terms of the settlement, as the settlement itself did not provide for such interest.

The Federal Court's decision hinged on a careful analysis of the language used in the settlement agreement and the context in which the reference to the judgment was made. By interpreting the settlement terms independently, the court avoided imposing additional obligations on the parties that were not explicitly agreed upon. This ruling clarified the legal position regarding the interpretation of settlement agreements that reference previous judgments, ensuring that such references do not automatically incorporate all aspects of the judgment into the settlement terms.

The final orders of the court were that interest on costs paid by the plaintiff was not payable under the terms of the settlement agreement. The court provided clarity on the interpretation of such settlement agreements, ensuring that any reference to a judgment's terms serves as context rather than an incorporation of those terms into the settlement.

Orders