Lucas v Salman (No 2) - [2022] NSWSC 1527

Supreme Court

New South Wales

Medium Neutral Citation: Lucas v Salman (No 2) [2022] NSWSC 1527
Hearing dates: 25 October and 1 November 2022 (written submissions); 2 November 2022
Date of orders: 2 November 2022
Decision date: 09 November 2022
Jurisdiction: Equity
Before: Kunc J
Decision:
Defendants to pay plaintiffs’ costs

Catchwords:
COSTS — Party/Party — Exceptions to general rule that costs follow the event — Whether there should be no order as to costs where plaintiffs succeeded on limited issues — Calderbank offer — No issue of principle

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Brady v Mikan (No 2) [2022] NSWSC 1320
Lucas v Salman [2022] NSWSC 1301
Perry v Perry (No 2) [2022] NSWSC 1462

Category: Costs
Parties: Paul Lucas (First Plaintiff)
Karl Lucas (Second Plaintiff)
John Salman (First Defendant)
Jodie Daniele Salman (Second Defendant)
Joanne Kylie Lee (Third Defendant)
Paul Michael Salman (Fourth Defendant)
Representation:
Counsel:
JE Armfield (Plaintiffs)
L Ellison SC with S Clemmett (Defendants)
Solicitors:
Maurice Blackburn (Plaintiffs)
Sydney Law Group (Defendants)

File Number(s): 2020/106879
Publication restriction: No

Judgment

Introduction

After considering the parties’ written submissions and a short further hearing, on 2 November 2022 the Court entered judgment against the Second, Third and Fourth Defendants for a total sum of $246,192.49 (the Judgment Sum) and ordered that the defendants pay the plaintiffs’ costs of the proceedings. A number of other orders were made which were not controversial. This judgment sets out my reasons for the costs order.
The Court delivered its principal judgment in these proceedings on 28 September 2022: Lucas v Salman [2022] NSWSC 1301 (the Principal Judgment). These reasons are to be read, and assume familiarity, with the Principal Judgment. Defined terms in the Principal Judgment have the same meaning in these reasons.
As at the earlier hearing, Mr JE Armfield of Counsel appeared for the plaintiffs. Mr L Ellison of Senior Counsel appeared with Ms S Clemmett of Counsel for the defendants.
It will be recalled that the plaintiffs asserted four causes of action:

Breach of contract;

Estoppel;

Family provision orders in relation to George’s estate; and

Family provision orders in relation to Jill’s estate.

The plaintiffs succeeded only in relation to the estoppel claim, and then also only in part insofar as it related to George’s superannuation of $211,892.84.
The plaintiffs’ straightforward submission was that they had succeeded, such that according to Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 42.1, costs should follow the event. The plaintiffs therefore sought an order that the defendants pay the plaintiffs’ entire costs of the proceedings.
For their part, the defendants submitted that the very substantial majority of the work done by both parties had been directed to claims upon which the plaintiffs had failed. The defendants therefore submitted that, in the exercise of the Court’s discretion, the orders that would best do justice between the parties were that:

Each party bear their own costs up until 22 October 2022; and

From 22…

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 Lucas v Salman (No 2)

Details

AGLC: Lucas v Salman (No 2) [2022] NSWSC 1527
Case: [2022] NSWSC 1527
Decision Date: 09 November 2022

CaseChat Overview and Summary

The case of Lucas v Salman (No 2) involved a dispute between two parties, where the nature of the conflict was centered around costs in relation to a legal proceeding. The matter was adjudicated in a court, which provided a ruling on the contentious issues. The plaintiffs, Lucas, emerged victorious on several limited issues, prompting a discussion regarding the general rule that costs follow the event. Notably, the court was called upon to address the question of whether there should be no order as to costs when a party succeeds on limited issues, as well as the implications of a Calderbank offer.

The court had to determine the appropriate approach to costs in this situation, considering the plaintiffs' success on specific matters and the presence of a Calderbank offer. This involved an analysis of the established principles and precedents in Australian law, as well as the potential impact of such an offer on the costs allocation. The court was tasked with making a decision that balanced the interests of both parties and adhered to the legal framework governing costs in litigation.

In delivering its judgment, the court concluded that there should be no order as to costs in this instance, given the plaintiffs' limited success and the existence of a Calderbank offer. The court found no issue of principle that would warrant a departure from the general rule in this particular case. Consequently, the court determined that the appropriate course of action was to make no order regarding costs, taking into account the specific circumstances and the relevant legal principles. This decision effectively resolved the dispute regarding costs between the parties in this case.

Orders