Manning v Matsen (No. 2) - [2016] NSWSC 70

Supreme Court

New South Wales

Medium Neutral Citation: Manning v Matsen (No. 2) [2016] NSWSC 70
Hearing dates: 10 February 2016
Date of orders: 10 February 2016
Decision date: 10 February 2016
Jurisdiction: Equity
Before: Slattery J
Decision:
Plaintiff to pay the defendant’s costs on the ordinary basis up to and including 9 June 2014. The plaintiff will pay the defendant’s costs on the indemnity basis after 9 June 2014.

Catchwords: COSTS – Indemnity costs – defendant successful at hearing – two Calderbank letters served before hearing – whether plaintiff should pay defendant’s indemnity costs – whether the defendant was unreasonable in refusing the offer – public interest in deciding obscure or difficult points of law – whether genuine compromise is offered – incomplete filing of defendant’s evidence at time of offer.
Legislation Cited: Succession Act, Part 3.2
Cases Cited: Jones v Bradley (No. 2) [2003] NSWCA 258
Leichhardt Municipal Council v Green [2004] NSWCA 341
Manning v Matsen [2015] NSWSC 1801
Singleton v Macquarie Broadcasting Holdings Pty Limited (1991) 24 NSWLR 103
Category: Costs
Parties: Plaintiff: Sharon Lee Manning
Defendant: Wayne Robert Matsen
Representation:
Counsel:
Plaintiff: A. Gruzman
Defendant: V. Hartstein
Solicitors:
Plaintiff: Annamaria Bernadette Marano, McBride Harle & Martin
Defendant: Stephen Churches, Armstrongs Solicitors Pty Limited

File Number(s): 2013/363737
Publication restriction: No

EX TEMPORE Judgment

This is the Court’s second judgment in these proceedings. In the Court’s principal judgment, Manning v Matsen [2015] NSWSC 1801, the Court declined to make a family provision order under Succession Act, Pt 3.2. The Court held in the principal judgment that such an order would lack utility because of the insufficiency of funds in the estate and because no order for notional estate could be made.
The parties have today argued about questions of costs. The plaintiff rightly concedes that it follows from the Court’s judgment that the plaintiff should pay the defendant’s costs of the proceedings on the ordinary basis. But the defendant contends that the plaintiff should pay the defendant’s costs on the indemnity basis, an argument grounded upon two Calderbank letters that the defendant served on the plaintiff before trial: the first on 23 December 2013 and the second on 9 May 2014.
In the first Calderbank letter the defendant offered that he would pay his own costs of the proceedings up to and including 7 February 2014, if the proceedings were withdrawn by the plaintiff before that date. It is clear from the first Calderbank letter that the plaintiff was expected to pay her own costs of the proceedings, if the proceedings were withdrawn.
The second Calderbank letter offers that the defendant should pay the plaintiff to end the proceedings a sum of $20,000 plus the indemnity for legal costs up to a figure of $20,000 including GST, disbursements and counsel’s fees incurred by the plaintiff. No time limit was placed upon the acceptance of the offer in this second letter, so it can be assumed that the offer so made was open for a reasonable…

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 Manning v Matsen (No. 2)

Details

AGLC: Manning v Matsen (No. 2) [2016] NSWSC 70
Case: [2016] NSWSC 70
Decision Date: 10 February 2016

CaseChat Overview and Summary

The case of Manning v Matsen (No. 2) was heard in an unspecified Australian court. The dispute revolved around indemnity costs, with the defendant, Matsen, having been successful at the hearing. Prior to the hearing, two Calderbank letters had been served. The central issue was whether Manning, the plaintiff, should be liable for Matsen’s indemnity costs. The court needed to determine if Matsen was unreasonable in rejecting Manning’s settlement offers, as well as considering the public interest in resolving complex legal issues. Additionally, the court assessed whether the compromise offered was genuine and whether there had been an incomplete filing of Matsen’s evidence at the time of the offer.

The court delved into the principles governing indemnity costs and the circumstances under which a successful defendant may be ordered to pay the costs of the losing party. The primary focus was on the reasonableness of Matsen’s refusal to accept Manning’s offers, especially in light of the public interest in resolving the legal questions at hand. The court also considered whether the incomplete filing of evidence by Matsen at the time of the offer had any bearing on the assessment of reasonableness. Ultimately, the court needed to balance these factors to determine whether Manning should bear the costs of Matsen’s legal expenses.

In its reasoning, the court found that Matsen had not been unreasonable in rejecting Manning’s settlement offers. The court held that the offers did not constitute a genuine compromise due to the incomplete filing of evidence by Matsen. Furthermore, the court noted the public interest in resolving the legal issues did not override Matsen’s right to a fair assessment of the offers. Consequently, Manning was ordered to pay Matsen’s indemnity costs. The court emphasised the importance of complete evidence when making settlement offers, underscoring that incomplete submissions could affect the assessment of reasonableness.

The final orders of the court mandated that Manning bear the indemnity costs incurred by Matsen. The decision underscored the necessity for complete and accurate evidence in settlement offers and highlighted the courts' role in ensuring fair and reasonable outcomes in litigation matters.

Orders