Meadth v Nye - [2024] NSWSC 1637

Supreme Court

New South Wales

Medium Neutral Citation: Meadth v Nye [2024] NSWSC 1637
Hearing dates: On the Papers
Date of orders: 18 December 2024
Decision date: 18 December 2024
Jurisdiction: Equity
Before: Elkaim AJ
Decision:
The plaintiffs are to pay the defendants’ costs of the proceedings on an ordinary basis.

Catchwords:
COSTS — where judgment was for the defendant — where plaintiff is seeking apportionment of costs as they had succeeded on two of the three substantive issues in the proceedings — Calderbank offer by defendants — where Calderbank offer was made at an early stage of the proceedings — where defendants rejected Calderbank offer — no indemnity costs awarded — plaintiffs are to pay the defendant’s costs of the proceedings on an ordinary basis

Cases Cited:
Calderbank v Calderbank [1975] 3 WLR 586
Gray v Richards (No 2) [2014] HCA 47
Meadth v Nye [2024] NSWSC 1567

Category: Costs
Parties: Alexandra Meadth (First Plaintiff)
Medhat Eleisawy (Second Plaintiff)
Arthur Nye (First Defendant)
Alisa Nye (Second Defendant)
Representation:
Counsel:
Mr M Klooster (Plaintiffs)
Ms B K Nolan (Defendants)
Solicitors:
Diamond Conway Lawyers (Plaintiffs)
Green & Associates (Defendants)

File Number(s): 2021/179425
Publication restriction: No

JUDGMENT

On 6 December 2024 I delivered judgment in this matter, finding in favour of the defendants (Meadth v Nye [2024] NSWSC 1567). I gave leave to the parties to provide written submissions on costs.
The plaintiffs had sued the defendants alleging nuisance arising from patrons of the defendants’ business interfering with the plaintiffs’ use and enjoyment of their respective properties as well as interfering with the right of the public to the safe use of the roadway running alongside the property of all of the parties.
At the commencement of the hearing, I was asked to deal with a threshold issue of jurisdiction. The defendants submitted that the matter fell within the exclusive jurisdiction of the Land & Environment Court (the LEC). After hearing submissions from both parties, I adjourned to the following day when I told the parties that I was satisfied that I had jurisdiction and that the matter should continue. I gave my reasons in the principal judgment.
In relation to jurisdiction, it is important to note that in pursuing the matter before me the plaintiff’s abandoned a good deal of their statement of claim in obvious recognition that many of their allegations were properly restricted to the LEC. The claim pursued by the plaintiffs was confined to the tort of nuisance. Although their assertions implicitly necessitated a finding that a development consent that had been issued by the local council had been breached, the plaintiffs did not seek any remedy occasioned by any such breach.
I found that both a public and a private nuisance had been established.
The plaintiff’s failed in the proceedings because I was not satisfied that the remedy they proposed to counter the nuisance was viable or capable of addressing the nuisance. Again, I note that the remedy put forward was one which had only…

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 Meadth v Nye

Details

AGLC: Meadth v Nye [2024] NSWSC 1637
Case: [2024] NSWSC 1637
Decision Date: 18 December 2024

CaseChat Overview and Summary

The matter before the court involved a dispute between Meadth and Nye. The plaintiff, Meadth, sought apportionment of costs as they had succeeded on two out of the three substantive issues in the proceedings. The defendants, Nye, rejected a Calderbank offer made by Meadth at an early stage of the proceedings. The court was tasked with determining whether the plaintiff was entitled to apportionment of costs given their partial success, and if not, what the appropriate costs order should be.

The primary legal issues the court had to decide were whether the plaintiff was entitled to an apportionment of costs due to their partial success and whether the defendants should be ordered to pay the plaintiff's costs on an indemnity basis because they rejected the Calderbank offer. The court considered the principles governing costs in Australian litigation, particularly the discretion of the court to order costs on an indemnity basis if a Calderbank offer is rejected and the plaintiff succeeds on some issues. The court also examined the timing of the Calderbank offer and its implications for the costs order.

In its reasoning, the court found that the plaintiff had indeed succeeded on two of the three substantive issues. However, the court held that the plaintiff was not entitled to an apportionment of costs or indemnity costs because the Calderbank offer was made at an early stage of the proceedings. The court concluded that the plaintiff's partial success did not warrant indemnity costs, and the offer was not sufficiently advantageous to justify such an order. Consequently, the plaintiff was ordered to pay the defendants' costs of the proceedings on an ordinary basis.

The final orders of the court were that Meadth pay Nye's costs of the proceedings on an ordinary basis. The court did not award indemnity costs to Meadth nor did it apportion the costs between the parties.

Orders