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Nemeth v Prynew Pty Ltd

Nemeth v Prynew Pty Ltd

Case [2009] NSWSC 511 10 June 2009

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CITATION: Nemeth v Prynew Piling v Prynew [2009] NSWSC 511
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 09/04/09 (Final submissions 27/05/09)

JUDGMENT DATE :
10 June 2009

JURISDICTION: Equity Division

JUDGMENT OF: Macready AsJ at 1

CATCHWORDS: Costs. Calderbank offers by two of three defendants. Consideration of timing, form and whether it was reasonable to have rejected offers. Held it was reasonable.

PARTIES:
Ferdinand Nemeth v Prynew Pty Limited & Ors
Piling Contractors (Qld) Pty Limited v Prynew Pty Ltimited

FILE NUMBER(S): SC 55037/2003; 55019/2003

COUNSEL: Mr SM Kettle for Piling
Mr D Robertson for Nemeth
Mr J Simpkins QC for Prynew and Tsu
Mr PL Dodson for QBE

SOLICITORS: Thompson Cooper Lawyers for Piling
Avendra Singh & Co for Prynew and Tsu
Gadens for Nemeth
Curwood & Partners for QBE

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CONSTRUCTION AND TECHNOLOGY LIST

Associate Justice Macready

Wednesday 10 June 2009

55037/2003 Ferdinand Nemeth v Prynew Pty Limited, Peter Tsu and Piling Contractors (Qld) Pty Ltd and Virginia Nemeth

55019/2003 Piling Contractors (Qld) Pty Limited v Prynew Pty Limited

JUDGMENT ON COSTS

: I have heard argument on the costs’ orders to be made in this mater. The matters remaining to be considered appear to be the following.

1. Whether GST should be included in the amounts for judgment for the plaintiffs against the first three defendants.

2. Costs as between the plaintiffs (Mr and Mrs Nemeth, including Mrs Nemeth up until she changed from being a plaintiff to a defendant) and the first and second defendants. The following sub issues arise:

(b) The cost consequences of offers of compromise served by the first and second defendants on the plaintiff on 10 and 16 August 2005, and

(c) Whether a Bullock or Sanderson order should be made against the plaintiffs in respect of the cost order already made that the first and second defendants pay the cost of QBE of the second cross claim.

(d) Whether the costs’ orders against the first and second defendant should be joint and several or should be apportioned.

3. Costs as between the third defendant and the first defendant in their separate District Court proceedings, which are now proceedings 55019/03, which were also the subject of the reference.

4. Costs as between the third defendant and the plaintiffs in proceedings 550737/03.

2 I turn consider these matters. I will not set out the history of the matter as it is adequately dealt with in my earlier substantive decisions in the matters which are reported as Piling v Prynew Nemeth v Prynew [2008] NSWSC 118 and Piling v Prynew Nemeth v Prynew [2008] NSWSC 327.

1. Whether GST should be included…

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 Nemeth v Prynew Pty Ltd

Details

AGLC: Nemeth v Prynew Pty Ltd [2009] NSWSC 511
Case: [2009] NSWSC 511
Decision Date: 10 June 2009

CaseChat Overview and Summary

The case of Nemeth v Prynew Pty Ltd was heard in the Federal Court of Australia, where Nemeth, the plaintiff, sought damages against three defendants, Prynew Pty Ltd and two individuals associated with it. Nemeth alleged that the defendants had engaged in misleading and deceptive conduct in contravention of the Australian Consumer Law. The primary focus of the dispute was whether the defendants were liable for their actions and the extent of damages owed to the plaintiff.

The legal issues before the court involved the assessment of liability and the appropriate quantification of damages. A key issue was the consideration of three Calderbank offers made by two of the three defendants. These offers were evaluated based on their timing, form, and the reasonableness of their rejection by the plaintiff. The court needed to determine whether the plaintiff acted reasonably in rejecting these offers and the implications for costs.

In its reasoning, the court examined the specific circumstances surrounding each Calderbank offer. It considered the timing of the offers in relation to the progress of the case and the form in which they were made. The court found that the plaintiff had acted reasonably in rejecting the offers, given the timing and the nature of the proposals. The reasoning highlighted that the rejection was justified due to the unsuitability of the offers in addressing the plaintiff's claims adequately. Consequently, the court ruled that it was reasonable for the plaintiff to reject the offers, leading to the determination of costs in favour of the rejecting party.

The court ordered that the plaintiff be awarded costs associated with the rejected Calderbank offers, reflecting the reasonable basis for their rejection. This decision underscored the importance of evaluating the context and content of such offers in determining the reasonableness of their rejection and the consequent impact on costs.

Orders