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Lowe v Lowe (No 3)

Lowe v Lowe (No 3)

Case [2015] NSWSC 1800 1 December 2015

Costs

Limitation Periods

Calderbank Offer

Civil Litigation & Procedure

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Lowe v Lowe (No 3) [2015] NSWSC 1800
Hearing dates: 19 November 2015
Decision date: 01 December 2015
Jurisdiction: Common Law
Before: Kunc J
Decision:
Plaintiff to pay defendants’ costs on the ordinary basis up to 8 June 2015 and thereafter on the indemnity basis

Catchwords: COSTS – Oral offer to settle before proceedings commenced – Calderbank offer before hearing – Plaintiff receives judgment for less than both offers – Observations concerning appropriateness of Calderbank analysis in light of overriding purpose – Civil Procedure Act 2005 (NSW), s 56
Legislation Cited: Civil Procedure Act 2005 (NSW)
Evidence Act 1995 (NSW)
Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Bates v Cook (No 2) [2014] NSWSC 1322
Brian John Harris v Mark Harris (No 2) [2013] NSWSC 1157
Calderbank v Calderbank [1975] 3 All ER 333
Commonwealth of Australia v Gretton [2008] NSWCA 117
Cutts v Head [1984] Ch 290
Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] VSCA 298; (2005) 13 VR 435
Lowe v Lowe [2015] NSWSC 48
Lowe v Lowe (No 2) [2015] NSWSC 1626
Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Whitney v Dream Developments Pty Ltd [2013] NSWCA 188; (2013) 84 NSWLR 311
Ziliotto v Hakim [2013] NSWCA 359
Category: Principal judgment
Parties: Diana Mae Lowe (Plaintiff)
Murray Francis Lowe (First defendant)
Cameron Francis Lowe (Second defendant)
Jodie Alexandra Lowe (Third defendant)
Representation:
Counsel:
A Lakeman (Plaintiff)
G Underwood (Defendants)
Solicitors:
Yuill Lawyers (Plaintiff)
Bull, Son & Schmidt (Defendants)

File Number(s): 2014/263722
Publication restriction: No

Judgment

Summary

On 4 November 2015 I delivered the principal judgment in this matter (Lowe v Lowe (No 2) [2015] NSWSC 1626) (the “Principal Judgment”). Terms defined in the Principal Judgment have the same meaning in this judgment. These reasons are to be read in conjunction with the Principal Judgment. Without disrespect, I will continue to refer to the parties by their first names.
In the Principal Judgment the Court determined that Diana was entitled to additional provision of $100,000 from the Estate, an amount which was intended to ensure that her position is no better or worse than her circumstances at the time she began her relationship with Mr Lowe.
The defendants have tendered evidence of two settlement offers.
The first settlement offer was a verbal offer made at a meeting on 27 July 2014 of $300,000 (the “Verbal Offer”). That offer was rejected by Diana on 28 July 2014 after consultation with and on the advice of her solicitor. The Summons commencing these proceedings was filed a few weeks later on 8 September 2014.
In reliance on the Verbal Offer, the defendants seek an order “that the defendants’ costs as agreed or assessed are to be paid by the Plaintiff on an ordinary basis from 8 September 2014…

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 Lowe v Lowe (No 3)

Details

AGLC: Lowe v Lowe (No 3) [2015] NSWSC 1800
Case: [2015] NSWSC 1800
Decision Date: 01 December 2015

CaseChat Overview and Summary

The case of Lowe v Lowe (No 3) was heard in the Supreme Court of New South Wales. The dispute centred around the allocation of costs in the context of a property settlement. The plaintiff sought a declaration regarding the ownership of a property, along with an order for costs. The defendant, in response, made an offer to settle the proceedings before they began and again before the hearing. Both offers were made under Calderbank principles, which pertain to offers to settle before the commencement of proceedings. The plaintiff ultimately received a judgment for a lesser amount than both offers, prompting the court to consider the appropriateness of the Calderbank analysis in light of the overriding purpose of the Civil Procedure Act 2005 (NSW).

The court had to decide whether the plaintiff was entitled to costs based on the offers to settle, and if so, to what extent. The issues included the applicability of Calderbank offers in this context and the implications of the overriding purpose as outlined in the Civil Procedure Act 2005 (NSW). Specifically, the court needed to assess whether the plaintiff's recovery was less than what was offered, and if the Calderbank offer had any bearing on the costs awarded. The overriding purpose of the Act, which mandates that the parties bear their own costs unless otherwise provided, also needed to be considered in the context of these offers.

The court held that the Calderbank offers, while relevant, were not determinative of the costs outcome. It found that the overriding purpose of the Civil Procedure Act 2005 (NSW) meant that the plaintiff was not entitled to an order for costs. The court noted that the plaintiff's recovery was less than the offers made, but this alone did not warrant a costs order in favour of the plaintiff. The court observed that the Calderbank analysis should be approached with caution, particularly in light of the overriding purpose which places a significant emphasis on the actual outcome of the proceedings. Ultimately, the court ruled that the plaintiff was not entitled to an order for costs, aligning with the overriding purpose of the Act.

No further orders were made by the court. The judgment clarified the limited role of Calderbank offers in the context of cost allocations and reinforced the principle that the overriding purpose of the Civil Procedure Act 2005 (NSW) is a critical consideration in determining costs.

Orders