Mills v Bale (No. 2) - [2010] NSWDC 189

CITATION: Mills v Bale & Anor (No. 2) [2010] NSWDC 189

HEARING DATE(S): 13 and 31 August 2010

JUDGMENT DATE:
3 September 2010

JURISDICTION: Civil

JUDGMENT OF: Levy SC DCJ

DECISION: 1. The principal judgment is modified to accommodate the slip rule amendments referred to in paragraphs [6], [7] and [8], and the amount of the principal judgment in favour of the plaintiff is varied from $703,149.28 to $666,128.93;
2. The defendants are to pay the plaintiff’s costs on the ordinary basis up to 3 November 2008 as agreed or assessed, and on the indemnity basis from 4 November 2008.
3. The stay ordered on 13 August 2010 is extended for 7 days from today’s date pending the filing of a notice of appeal and then, if that document is filed, the stay is further extended pending further orders to be made by the Court of Appeal on the application of the defendants;
4. The defendants are to pay the plaintiff’s costs of the application for indemnity costs on 13 August 2010;
5. Each party is to pay their own costs of the application made on 31 August 2010.

CATCHWORDS: PROCEDURE – slip rule amendment to principal judgment – absent consent, no power to make orders to vary a judgment where matters sought to be adjusted under the slip rule UCPR r 36.17 were not argued at substantive hearing - - COSTS – offer of compromise – order for indemnity costs

LEGISLATION CITED: Civil Liability Act 2002
Uniform Civil Procedure Rules 2005, r 36.17

CASES CITED: Firth v Sutton [2010] NSWCA 90

PARTIES: Howard John Mills (Plaintiff)
Peter Earle Bale & George Paul Boshev trading as Bale Boshev Lawyers (Defendants)

FILE NUMBER(S): 1839 of 2009; 2009/334871

COUNSEL: Mr BR McClintock SC with M Lawson (Plaintiff)
Mr M Dicker (Defendants – 13 August 2010)
Mr P Braham (Defendants – 31 August 2010)

SOLICITORS: Thomas Mitchell (Plaintiff)
Yeldham Price O’Brien Lusk (Defendants)

JUDGMENT

1. On 4 August 2010 judgment was given in favour of the plaintiff in these proceedings in the sum of $703,149.28 : Mills v Bale & Anor [2010] NSWDC 164.

2. The matter was relisted on 13 August 2010 for the purpose of hearing an application by the plaintiff for indemnity costs and to deal with an amendment to the judgment under the slip rule : UCPR r 36.17. The defendants took the opportunity to raise a question as to the appropriate rate to be awarded for pre-judgment interest and sought leave to raise other matters under the slip rule that were not the subject of earlier submissions.

3. On 13 August 2010, I ordered a stay of the earlier orders made on 4 August 2010 for 14 days, to enable the defendants to consider their position with regard to slip rule and other issues. That stay was then extended by consent, pending the delivery of these reasons. In the following paragraphs I deal with the issues that have been raised.

Slip rule amendments

4. The judgment contains…

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 Mills v Bale (No. 2)

Details

AGLC: Mills v Bale (No. 2) [2010] NSWDC 189
Case: [2010] NSWDC 189
Decision Date: 3 September 2010

CaseChat Overview and Summary

The case of Mills v Bale (No. 2) was heard in a court where the parties, Mills and Bale, were engaged in a dispute. The primary concern was the modification of a principal judgment through the application of the slip rule under the Uniform Civil Procedure Rules. This involved altering the amount of the judgment in favour of the plaintiff from $703,149.28 to $666,128.93. Additionally, the court was tasked with addressing the issue of costs, specifically whether an offer of compromise warranted an order for indemnity costs.

The legal issues that the court had to resolve centred on whether it had the authority to make orders to vary a judgment under the slip rule when the matters sought to be adjusted were not argued at the substantive hearing. The court was also required to determine whether the offer of compromise by the defendants constituted grounds for the plaintiff to be awarded indemnity costs.

In resolving these issues, the court found that absent consent, it lacked the power to make orders to vary a judgment where the matters sought to be adjusted under the slip rule had not been argued at the substantive hearing. However, the court did modify the principal judgment to accommodate the slip rule amendments, altering the amount in favour of the plaintiff. Regarding the costs, the court ruled that the plaintiff was entitled to indemnity costs from a certain date, and that the defendants were to pay the plaintiff’s costs of the application for indemnity costs.

The court's final orders included modifying the principal judgment to reflect the slip rule amendments, directing the defendants to pay the plaintiff's costs on the ordinary and indemnity basis from specific dates, and extending the stay pending the filing of a notice of appeal and further orders from the Court of Appeal. Additionally, the court ordered that the defendants pay the plaintiff's costs of the application for indemnity costs and that each party bear their own costs for another application.

Orders

Orders of the court

1. The principal judgment is modified to accommodate the slip rule amendments referred to in paragraphs [6], [7] and [8], and the amount of the principal judgment in favour of the plaintiff is varied from $703,149.28 to $666,128.93;

2. The defendants are to pay the plaintiff’s costs on the ordinary basis up to 3 November 2008 as agreed or assessed, and on the indemnity basis from 4 November 2008.

3. The stay ordered on 13 August 2010 is extended for 7 days from today’s date pending the filing of a notice of appeal and then, if that document is filed, the stay is further extended pending further orders to be made by the Court of Appeal on the application of the defendants;

4. The defendants are to pay the plaintiff’s costs of the application for indemnity costs on 13 August 2010;

5. Each party is to pay their own costs of the application made on 31 August 2010.

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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CITATION:	Mills v Bale & Anor (No. 2) [2010] NSWDC 189
HEARING DATE(S):	13 and 31 August 2010
JUDGMENT DATE:	3 September 2010
JURISDICTION:	Civil
JUDGMENT OF:	Levy SC DCJ
DECISION:	1. The principal judgment is modified to accommodate the slip rule amendments referred to in paragraphs [6], [7] and [8], and the amount of the principal judgment in favour of the plaintiff is varied from $703,149.28 to $666,128.93; 2. The defendants are to pay the plaintiff’s costs on the ordinary basis up to 3 November 2008 as agreed or assessed, and on the indemnity basis from 4 November 2008. 3. The stay ordered on 13 August 2010 is extended for 7 days from today’s date pending the filing of a notice of appeal and then, if that document is filed, the stay is further extended pending further orders to be made by the Court of Appeal on the application of the defendants; 4. The defendants are to pay the plaintiff’s costs of the application for indemnity costs on 13 August 2010; 5. Each party is to pay their own costs of the application made on 31 August 2010.
CATCHWORDS:	PROCEDURE – slip rule amendment to principal judgment – absent consent, no power to make orders to vary a judgment where matters sought to be adjusted under the slip rule UCPR r 36.17 were not argued at substantive hearing - - COSTS – offer of compromise – order for indemnity costs
LEGISLATION CITED:	Civil Liability Act 2002 Uniform Civil Procedure Rules 2005, r 36.17
CASES CITED:	Firth v Sutton [2010] NSWCA 90
PARTIES:	Howard John Mills (Plaintiff) Peter Earle Bale & George Paul Boshev trading as Bale Boshev Lawyers (Defendants)
FILE NUMBER(S):	1839 of 2009; 2009/334871
COUNSEL:	Mr BR McClintock SC with M Lawson (Plaintiff) Mr M Dicker (Defendants – 13 August 2010) Mr P Braham (Defendants – 31 August 2010)
SOLICITORS:	Thomas Mitchell (Plaintiff) Yeldham Price O’Brien Lusk (Defendants)