Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Mendonca v Tonna (No 3) [2020] NSWCA 332 Hearing dates: On the papers Date of orders: 16 December 2020 Decision date: 16 December 2020 Before: Bell P;
Meagher JA;
Payne JA.Decision: (1) Vary order 3 made on 26 August 2020 as follows:
Appellant pay respondents’ costs of the appeal to be assessed:
(i) Up to and including 22 May 2020 on the ordinary basis; and
(ii) From 23 May 2020 on an indemnity basis.
(2) Dismiss Dr Mendonca’s amended notice of motion filed 4 September 2020.
(3) Dr Mendonca pay the respondents’ costs of that amended notice of motion.
(4) Dr Mendonca pay the respondents’ costs of their notice of motion filed 3 September 2020.
Catchwords: CIVIL PROCEDURE – application to reopen judgment dismissing appeal – where application relies in part on “further” evidence not led at trial or on appeal – no issue of principle
COSTS – ordinary or indemnity – offer of compromise – result less favourable to offeree – whether rejection of offer unreasonable – no issue of principle
Legislation Cited: Supreme Court Act 1970 (NSW), s 75A(7), (8)
Uniform Civil Procedure Rules 2005 (NSW), rr 36.15, 36.16, 42.14, 51.47. 51.48
Cases Cited: Akins v National Australia Bank (1994) 34 NSWLR 155
Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6
Bobolas v Waverley Council [2014] NSWCA 131
Croghan v Blacktown City Council (2019) 100 NSWLR 757; [2019] NSWCA 248
House v The King (1936) 55 CLR 499; [1936] HCA 40
Majak v Rose (No 5) [2017] NSWCA 238
Mega-Top Cargo Pty Ltd v Moneytech Services Pty Ltd [2016] NSWCA 3
Mendonca v Tonna [2020] HCASL 240
Mendonca v Tonna [2020] NSWCA 196
Category: Procedural and other rulings Parties: Renuka Mendonca (applicant)
Mark Tonna (first respondent)
Lorraine Tonna (second respondent)Representation: Counsel:
Solicitors:
Applicant (self-represented)
P Newton and J Gatland (respondents)
Applicant (self-represented)
Adams & Partners (respondents)
File Number(s): 2020/13642 Publication restriction: N/A Decision under appeal
- Court or tribunal:
- Supreme Court of New South Wales
- Jurisdiction:
- Equity Division
- Citation:
- Date of Decision:
- 20 December 2019; 25 March 2020
- Before:
- Ward CJ in Eq
- File Number(s):
- 2016/182075; 2017/292576
Judgment
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THE COURT: On 26 August 2020 this Court dismissed Dr Mendonca’s appeal from orders of Ward CJ in Eq declaring that she held the legal title to a property at Galston on a resulting trust for herself and Mr and Mrs Tonna in proportions reflecting their respective contributions to the purchase of that property. The Court also upheld her Honour’s rejection of Dr Mendonca’s claims that Mr and Mrs Tonna had occupied the Galston property from the time of its purchase under a residential tenancy agreement and that they had breached that agreement (Mendonca v Tonna [2020] NSWCA 196).
-
On 2 September 2020, Dr…
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- AGLC
- Mendonca v Tonna (No 3) [2020] NSWCA 332
- Case
- [2020] NSWCA 332
- Decision Date
CaseChat Overview and Summary
The Court was required to determine two primary legal issues. Firstly, whether the judgment dismissing the appeal should be reopened, particularly in light of the "further" evidence tendered. Secondly, the Court had to consider whether the costs of the appeal should be awarded on an ordinary or indemnity basis, given an offer of compromise and the outcome for the offeree.
The Court dismissed Dr Mendonca's application to reopen the judgment, finding no issue of principle that would warrant such a course, especially given the nature of the further evidence. Regarding costs, the Court varied a previous order. It ordered that the appellant pay the respondents’ costs of the appeal assessed on the ordinary basis up to and including 22 May 2020, and on an indemnity basis from 23 May 2020 onwards. This decision reflected the Court's assessment of the reasonableness of rejecting the offer of compromise in light of the subsequent proceedings. The Court also ordered Dr Mendonca to pay the respondents’ costs of his amended notice of motion and of the respondents’ notice of motion.
Orders
Orders of the court
(1) Vary order 3 made on 26 August 2020 as follows:
Appellant pay respondents’ costs of the appeal to be assessed:
(i) Up to and including 22 May 2020 on the ordinary basis; and
(ii) From 23 May 2020 on an indemnity basis.
(2) Dismiss Dr Mendonca’s amended notice of motion filed 4 September 2020.
(3) Dr Mendonca pay the respondents’ costs of that amended notice of motion.
(4) Dr Mendonca pay the respondents’ costs of their notice of motion filed 3 September 2020.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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