Lucantonio v Kleinert (Costs) - [2011] NSWSC 1642

Supreme Court

New South Wales

Medium Neutral Citation: Lucantonio v Kleinert & Ors (Costs) [2011] NSWSC 1642
Hearing dates: Friday, 23 December 2011
Decision date: 23 December 2011
Jurisdiction: Common Law
Before: Brereton J
Decision:
Order that the plaintiff pay the second defendant's costs on a party-party basis to 6 March 2009 and thereafter on an indemnity basis.
No further costs order to be made against Mr Dino Lucantonio.
No interest order made as between the plaintiff and first and third defendants.

Catchwords: PRACTICE AND PROCEDURE - Costs - second defendant makes settlement offer "without prejudice save as to costs" - plaintiff rejects offer - plaintiff's claims fail - offer not in form stipulated by UCPR r 20.26 - such offer can still have costs consequences - in circumstances offer justifies costs payable on indemnity basis from date of offer.
PRACTICE AND PROCEDURE - Costs - second plaintiff replaced as trustee - second plaintiff ceases to be party as no longer necessary or proper party - at time second plaintiff ceased to be party opportunity afforded to debate question of costs - opportunity not taken - expectations engendered in former second plaintiff - as matter of discretion no further costs order made.
PRACTICE AND PROCEDURE - Interest on costs - in absence of countervailing discretionary consideration ordinary position that party who obtains costs obtains interest - consents between first defendant and plaintiff and third defendant and plaintiff contain term "no other order as to costs" - whether that term precludes order for interest under (NSW) Civil Procedure Act 2005, s 101(4) - at time consents entered into not unreasonable for plaintiff to think costs dispute brought to an end in context where no application for interest on costs made - looked at objectively plaintiff would have assumed consents brought costs disputation to a conclusion - inappropriate to make order for interest.
Legislation Cited: (NSW) Civil Procedure Act (2005), s 101(4)
(NSW) De Facto Relationships Act (1984)
(NSW) Supreme Court Act 1970, s 95
(NSW) Uniform Civil Procedure Rules, r 20.26, r 36.7, s 42.13
Cases Cited: Harris v Schembri, (New South Wales Supreme Court, Bryson J, 7 November 1995, unreported)
Inglis v Inglis Research Pty Ltd [2010] NSWSC 749
Kallinicos & Anor v Hunt & Ors [2008] NSWSC 149
Lucantonio v Kleinert [2011] NSWSC 753
Seiwa Australia Pty Ltd v Seeto Financial Circumstances Pty Ltd (No 2) [2010] NSWSC 118
Simmons v Poly Cotton Marketing Pty Ltd [2007] NSWSC 1092
Timms & Ors v Commonwealth Bank of Australia (No 3) [2004] NSWCA 25
Category: Consequential orders
Parties: Dean Lucantonio atf The Lucantonio Family Trust (first plaintiff)
Dino Lucantonio (second plaintiff)
Jaime Kleinert (first defendant)
Otto Stichter (second defendant)
Darryl Leslie Warren (third defendant)
Representation: Counsel:
Mr G Laughton SC (plaintiff)
Mr D R Sibtain (first and third defendants)
Mr G Curtin SC (second defendant)
Solicitors:
Gells Lawyers (plaintiffs)
Kennedys (first defendant)
DLA Phillips Fox (second defendant)
McCabe Terrill Lawyers (third defendant)

File Number(s): 2004/176817

Judgment (ex tempore)

HIS HONOUR: On…

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 Lucantonio v Kleinert (Costs)

Details

AGLC: Lucantonio v Kleinert (Costs) [2011] NSWSC 1642
Case: [2011] NSWSC 1642
Decision Date: 23 December 2011

CaseChat Overview and Summary

The matter before the court was an application for costs in the proceedings of Lucantonio v Kleinert, where the plaintiff had brought claims against multiple defendants. The first issue before the court was whether a settlement offer made by the second defendant, which was not in the form stipulated by the Uniform Civil Procedure Rules, could still have consequences for costs. The court found that while the offer was not in the prescribed form, it did justify an order for costs payable on an indemnity basis from the date of the offer. The second issue was whether the second plaintiff, who had been replaced as trustee, could be ordered to pay costs after ceasing to be a party to the proceedings. The court held that no further costs order should be made against the former second plaintiff as there was no opportunity to debate the question of costs when the plaintiff ceased to be a party, and the former second plaintiff had reasonable expectations that the matter of costs would not be revisited.

The third issue concerned the entitlement to interest on costs. The court considered whether the term "no other order as to costs" in consents between the parties precluded an order for interest under the Civil Procedure Act 2005. The court concluded that as it was not unreasonable for the plaintiff to assume, at the time the consents were entered into, that the costs dispute had been brought to an end, and no application for interest on costs had been made, it would be inappropriate to make an order for interest. The court held that the plaintiff, when objectively considered, would have assumed that the consents brought the costs disputation to a conclusion.

Orders