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Middleton v Erwin (No 2)

Middleton v Erwin (No 2)

Case [2009] NSWSC 200 27 March 2009

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CITATION: Middleton v Erwin (No 2) [2009] NSWSC 200

HEARING DATE(S): 20 March 2009

JUDGMENT DATE :
27 March 2009

JUDGMENT OF: Harrison J

DECISION: 1. Verdict for the plaintiff against the first defendant for $3,200,000.
2. Order the first defendant to pay the plaintiff's costs.
3. Verdict for the second defendant on the plaintiff's claim.
4. Order the plaintiff to pay the second defendant's costs.
5. Dismiss the first defendant's cross-claim against the second defendant with costs.

CATCHWORDS: COSTS – Bullock or Sanderson order – whether conduct of the first defendant made it fair to impose liability upon him to pay the costs the second defendant – whether reasonable to join the second defendant – plaintiff not entitled to Bullock order

CATEGORY: Consequential orders

CASES CITED: ACQ v Cook (No 2); Aircair Moree v Cook (No 2); Cook v Country Energy (No 2); Country Energy v Cook (No 2) [2008] NSWCA 306
Almeida v Universal Dye Works Pty Ltd (No 2) [2001] NSWCA 156
Bullock v London General Omnibus Co [1907] 1 KB 264
Gould v Vaggelas [1985] HCA 85; (1984) 157 CLR 215
Great Lakes Shire Council v Dederer; Roads & Traffic Authority of NSW v Dederer [No 2] [2006] NSWCA 336
Roads and Traffic Authority of NSW, Council of the Shire of Evans & Pioneer Road Services Pty Ltd v Palmer (No 2) [2005] NSWCA 140
Sanderson v Blyth Theatre Co [1903] 2 KB 533
Steppke v National Capital Development Commission (1978) 21 ACTR 23
Stevedoring Industry Finance Committee v Gibson [2000] NSWCA 179
The Nominal Defendant v Swift; Wollondilly Shire Council v Swift [2007] NSWCA 56

PARTIES: Glen Stuart Middleton (Plaintiff)
Alan John Erwin (First Defendant)
Iveco Trucks Australia Limited (Second Defendant)

FILE NUMBER(S): SC 20238 of 2006

COUNSEL: D A Wheelahan QC with A R G Johnson (Plaintiff)
R R Bartlett SC with J V Gooley (First Defendant)
R A Cavanagh (Second Defendant)

SOLICITORS: Baldock Stacy & Niven (Plaintiff)
TL Lawyers (First Defendant)
Moray & Agnew (Second Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HARRISON J

27 March 2009

20238/06 Glen Stuart Middleton v Alan John Erwin & Iveco Trucks Australia Limited (No 2)
JUDGMENT

1 HIS HONOUR: On 5 March 2009 I delivered judgment in the principal proceedings: see [2009] NSWSC 108. The plaintiff succeeded against the first defendant but not against the second defendant. There is no argument that the first defendant should pay the plaintiff's costs or that the second defendant's costs should be paid by someone. The issue for determination is whether the plaintiff or the first defendant should pay the second defendant's costs.

2 The facts of the case are adequately described in the principal judgment. Briefly the plaintiff was injured when the steering of the first defendant's truck failed and it crossed onto the incorrect side of the road and collided with the plaintiff's vehicle. The first defendant was found to be negligent for failing adequately to maintain the steering mechanism…

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 Middleton v Erwin (No 2)

Details

AGLC: Middleton v Erwin (No 2) [2009] NSWSC 200
Case: [2009] NSWSC 200
Decision Date: 27 March 2009

CaseChat Overview and Summary

The case of Middleton v Erwin (No 2) involved a dispute between the plaintiff, Middleton, and two defendants, Erwin and another party. The central issue was whether the first defendant's conduct justified imposing liability upon him to cover the costs incurred by the second defendant. Additionally, the court had to determine whether it was reasonable for the plaintiff to join the second defendant and whether the plaintiff was entitled to a Bullock order.

The court examined the circumstances leading to the second defendant's involvement in the proceedings. It considered the conduct of both defendants and the plaintiff's decision to join the second defendant. The court analysed the principles governing Bullock or Sanderson orders and assessed whether the first defendant's actions warranted making him responsible for the second defendant's costs. The court also evaluated the reasonableness of joining the second defendant and the potential implications for the plaintiff's entitlement to a Bullock order.

In its reasoning, the court concluded that the first defendant's conduct did not justify imposing liability upon him for the second defendant's costs. The court found that joining the second defendant was reasonable under the circumstances, but the plaintiff was not entitled to a Bullock order. The court's decision was based on the specific facts of the case and the applicable legal principles.

The court ordered that the first defendant was not liable for the second defendant's costs, and the plaintiff's claim for a Bullock order was dismissed. The court's ruling provided clarity on the respective responsibilities of the parties involved and the appropriate application of legal orders in the context of the dispute.

Orders