12 July 2021 (written submissions); 30 July 2021 (written submissions); 2 August 2021 (written submissions); 3 August 2021 (Newcastle); 9 August 2021 (Newcastle at Sydney)
Date of orders:
20 August 2021
Decision date:
20 August 2021
Jurisdiction:
Civil
Before:
Dicker SC DCJ
Decision:
(1) In relation to the plaintiff's claim against the first defendant, Mr Robin, the plaintiff is to pay on the ordinary basis as agreed or assessed the costs of Mr Robin. These costs include the costs of Mr Robin of the Notice of Motion filed 16 July 2019.
(2) In relation to the plaintiff's claim against the second defendant, Active Tree Services Pty Ltd, the plaintiff is to pay the costs of Active Tree Services Pty Ltd on the ordinary basis as agreed or assessed. These costs include the costs of Active Tree Services Pty Ltd of the Notice of Motion filed 16 July 2019.
(3) In relation to the First Cross-Claim by Mr Robin against Active Tree Services Pty Ltd and the Fourth Cross-Claim by Active Tree Services Pty Ltd against Mr Robin, Active is to pay the costs of Mr Robin of the First Cross-Claim and the Fourth Cross-Claim on the ordinary basis as agreed or assessed.
(4) The second cross-claimant, Active Tree Services Pty Ltd, is to pay the costs on the ordinary basis as agreed or assessed of the cross-defendant to the Second Cross-Claim WFI Insurance Ltd trading as Lumley Insurance of the Second Cross-Claim.
Catchwords:
COSTS – costs of lengthy hearing where plaintiff was unsuccessful in claim – Calderbank offers and Offers of Compromise – costs relating to three cross-claims
John Moffett (Plaintiff) Apihana Robin (First Defendant; Cross-Claimant to First Cross-Claim; Cross-Defendant to Fourth Cross-Claim) Active Tree Services Pty Ltd (Second Defendant; Cross-Defendant to First Cross-Claim; Cross-Claimant to Second Cross-Claim; Cross-Claimant to Fourth Cross-Claim) WFI Insurance Limited t/as Lumley Insurance (Cross-Defendant to Second Cross-Claim)
Representation:
Counsel: C Hart (Plaintiff) – via AVL A Combe – via AVL (First Defendant; Cross-Claimant to First Cross-Claim; Cross-Defendant to Fourth Cross-Claim) S McMahon –…
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.
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Details
AGLC
Moffett v Robin (No 2) [2021] NSWDC 426
Case
[2021] NSWDC 426
Decision Date
CaseChat Overview and Summary
The matter of Moffett v Robin (No 2) involved a plaintiff, Moffett, who brought a claim against two defendants, Robin and Active Tree Services Pty Ltd. The plaintiff's claim was unsuccessful, and the defendants sought costs. The case was heard in a relevant Australian court, which had to determine the appropriate allocation of costs given the unsuccessful claim and the presence of cross-claims. The primary focus was on whether the unsuccessful party should bear the costs of the lengthy hearing and the cross-claims, and if so, to what extent.
The court was required to consider the implications of Calderbank offers and offers of compromise in the context of costs allocation. It had to examine whether the unsuccessful plaintiff should bear the costs of the defendants and the costs associated with the cross-claims. The court needed to balance the principles of cost allocation against the fairness and proportionality of the outcome, particularly given the unsuccessful nature of the plaintiff's claim and the unsuccessful outcomes of some of the cross-claims.
The court found that the plaintiff, having been unsuccessful in their claim, should bear the costs of both defendants. This included the costs of a notice of motion filed by one of the defendants. Regarding the cross-claims, the court ruled that Active Tree Services Pty Ltd should bear the costs of one cross-claim against it and the costs of a cross-claim it filed. Additionally, Active Tree Services Pty Ltd was ordered to pay the costs of another party in relation to a different cross-claim. The court based its decision on the ordinary basis of costs, which could be agreed upon or assessed.
In summary, the court ordered the plaintiff to pay the costs of the two defendants, including specific costs related to a notice of motion. It also directed Active Tree Services Pty Ltd to pay the costs of a cross-claim against it and the costs of a cross-claim it filed. Finally, Active Tree Services Pty Ltd was to pay the costs of another party in relation to a different cross-claim. These orders reflect the unsuccessful outcomes of the plaintiff's claim and the cross-claims.
Orders
Orders of the court
(1) In relation to the plaintiff's claim against the first defendant, Mr Robin, the plaintiff is to pay on the ordinary basis as agreed or assessed the costs of Mr Robin. These costs include the costs of Mr Robin of the Notice of Motion filed 16 July 2019.
(2) In relation to the plaintiff's claim against the second defendant, Active Tree Services Pty Ltd, the plaintiff is to pay the costs of Active Tree Services Pty Ltd on the ordinary basis as agreed or assessed. These costs include the costs of Active Tree Services Pty Ltd of the Notice of Motion filed 16 July 2019.
(3) In relation to the First Cross-Claim by Mr Robin against Active Tree Services Pty Ltd and the Fourth Cross-Claim by Active Tree Services Pty Ltd against Mr Robin, Active is to pay the costs of Mr Robin of the First Cross-Claim and the Fourth Cross-Claim on the ordinary basis as agreed or assessed.
(4) The second cross-claimant, Active Tree Services Pty Ltd, is to pay the costs on the ordinary basis as agreed or assessed of the cross-defendant to the Second Cross-Claim WFI Insurance Ltd trading as Lumley Insurance of the Second Cross-Claim.