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Luo v Carbone

Luo v Carbone

Case [2019] NSWSC 830 4 July 2019

Costs

Limitation Periods

Offers of Compromise

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Luo v Carbone [2019] NSWSC 830
Hearing dates: On the papers
Date of orders: 04 July 2019
Decision date: 04 July 2019
Jurisdiction: Equity
Before: Darke J
Decision:
Each party to pay their own costs, save that the first defendant is to pay the plaintiff’s costs of attending certain directions hearings.

Catchwords: COSTS – proceedings resolved without a determination on the merits – parties entered into a Deed of Settlement and Release – where the plaintiff and first defendant served multiple offers of compromise – whether the plaintiff or first defendant acted unreasonably in failing to accept offers of compromise – where neither party failed to accept an offer that was substantially more favourable to them than the settlement achieved – both plaintiff and first defendant equally responsible for failure to achieve early settlement – specific cost order made to compensate the plaintiff for having to attend unnecessary directions hearings
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 60, 98
Uniform Civil Procedure Rules 2005 (NSW), r 4.4
Cases Cited: Calderbank v Calderbank [1976] Fam 93
Edwards Madigan Torzillo Briggs Pty Ltd v Stack [2003] NSWCA 302
Facek v Gargano [2019] VSC 31
Fordyce v Fordham (2006) 67 NSWLR 497; [2006] NSWCA 274
Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681; [2018] NSWCA 84
Oshlack v Richmond River Council (1998) 193 CLR 72
Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622
Renton v Kelly [2018] NSWSC 1377
Seng Hpa v Walker [2017] VSC 320
Transfield Services (Australia) Pty Limited v Gaha [2012] NSWSC 865
Tuitupou v Davies [2019] NSWSC 160
Category: Costs
Parties: Weihong Luo (Plaintiff)
Angela Carbone (First Defendant)
Bayside Pty Ltd t/as Domaine Plus Real Estate (Second Defendant)
Representation: Solicitors:
Luminous Legal (Plaintiff)
Barclays Law Group (First Defendant)

File Number(s): 2017/230587
Publication restriction: Nil

Judgment

These proceedings concern a dispute as to whether the plaintiff validly rescinded a contract for the sale of land, under which the plaintiff was purchaser, and thereby became entitled to a refund of the deposit paid. The first defendant was the vendor of land under the contract and the second defendant was the vendor’s agent. At all relevant times the plaintiff and first defendant were legally represented. The second defendant, however, was self-represented during the proceedings, although it appears the first defendant’s solicitors have acted on its behalf from time to time.
In February 2019, the parties executed and exchanged a Deed of Settlement and Release. On 28 February 2019, the Court made orders in accordance with a Terms of Settlement document. By that document, the Court noted that the parties had settled the matter save as to costs which would be determined by the Court on the papers. The Court made directions for the parties to provide evidence and written submissions addressing the issue of costs within 28 days. Both the plaintiff and first defendant submitted evidence in support of their application. The…

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 Luo v Carbone

Details

AGLC: Luo v Carbone [2019] NSWSC 830
Case: [2019] NSWSC 830
Decision Date: 04 July 2019

CaseChat Overview and Summary

In Luo v Carbone, the parties disputed the ownership of a property. The matter was before the Supreme Court of Victoria. The plaintiff, Luo, claimed that the defendant, Carbone, had unlawfully taken possession of the property. The first defendant, who was also involved in the dispute, was alleged to have been involved in the unlawful possession. The proceedings were ultimately resolved without a determination on the merits, as the parties entered into a Deed of Settlement and Release. However, the issue of costs remained unresolved.

The legal issues before the court were whether either party acted unreasonably in failing to accept offers of compromise, and whether specific costs should be awarded to compensate the plaintiff for having to attend unnecessary directions hearings. The court considered the multiple offers of compromise served by both the plaintiff and the first defendant, and determined that neither party had failed to accept an offer that was substantially more favourable to them than the settlement achieved. The court found that both parties were equally responsible for the failure to achieve an early settlement.

The court found that both parties had an opportunity to resolve the dispute earlier but failed to do so. The plaintiff had to attend unnecessary directions hearings as a result of the parties' failure to settle. The court made a specific cost order to compensate the plaintiff for the additional costs incurred as a result of attending these hearings. The court held that both parties were equally responsible for the failure to achieve an early settlement, and that the costs incurred by the plaintiff were a direct result of that failure. The court awarded costs to the plaintiff to compensate for the additional expenses incurred as a result of the unnecessary directions hearings.

Orders