Nolan v Nolan - [2016] QCA 5

SUPREME COURT OF QUEENSLAND

CITATION:

Nolan & Ors v Nolan [2016] QCA 5

PARTIES:

ANTHONY GERARD NOLAN
(first respondent/first appellant)
BRIAN KEVIN NOLAN
(second respondent/second appellant)
MAJELLA ANNE NOLAN
(third respondent/third appellant)
NOLAN & SON PTY LTD
ACN 010 567 174
(fourth respondent/fourth appellant)
v
DONNA MAREE NOLAN
(applicant/respondent)

FILE NO/S:

Appeal No 385 of 2015
SC No 3338 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Orders

ORIGINATING COURT:

Supreme Court at Brisbane – [2014] QSC 218

DELIVERED ON:

2 February 2016

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Gotterson and Morrison JJA and Boddice J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:
1.   The respondent’s application, filed 21 October 2015, be refused.

2.   Each party bear their own costs of the proceeding.

3.   The respondent pay the appellants’ costs of the appeal, cross-appeal and of the application filed on 21 October 2015, to be assessed on a standard basis.

CATCHWORDS:

PROCEDURE – JUDGMENTS AND ORDERS – CORRECTION UNDER SLIP RULE – where respondent filed application seeking variation of final orders on basis of slip rule – whether there is a basis for the application of slip rule – whether the figure awarded to the respondent by the Court of Appeal reflected her contribution to the common endeavour, as found by the primary Judge

PROCEDURE – COSTS – INFORMAL OFFERS AND CALDERBANK LETTERS – FAILURE IN PORTION OF CASE – where respondent received sum significantly less than any of the formal offers to settle made by the respondent – where a reasonable, informal offer was made by the appellants prior to commencement of proceedings – where that informal offer was not re-made during the proceedings – where respondent succeeded at trial, but failed in one aspect of her claim – whether any party is required to pay the other party’s costs of trial

PROCEDURE – COSTS – where appellants substantially succeeded on appeal – where cross-appeal dismissed – where application to vary final orders refused – whether respondent is required to pay the appellants’ costs of appeal, cross-appeal and application to vary final orders

COUNSEL:

No appearance for the respondents/appellants, the respondents’/appellants’ submissions were heard on the papers
No appearance for the applicant/respondent, the applicant’s/respondent’s submissions were heard on the papers

SOLICITORS:

Russells for the respondents/appellants
Shine Lawyers for the applicant/respondent

GOTTERSON JA: I agree with the orders proposed by Boddice J and with the reasons given by his Honour.
MORRISON JA: Given the decision on the appeal, I agree with the orders proposed by Boddice J in respect of the application filed on 21 October 2015, and costs.
BODDICE J: On 21 October 2015, this Court, by majority, allowed the appellants’ appeal, dismissed the respondent’s cross-appeal, set aside the orders below and made orders that the second, third and fourth appellants pay the respondent the sum of $319,050. Ancillary orders were made in relation to various properties and caveats.

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 Nolan v Nolan

Details

AGLC: Nolan v Nolan [2016] QCA 5
Case: [2016] QCA 5
Decision Date: 2 February 2016

CaseChat Overview and Summary

The case of Nolan v Nolan was before the court to address an application by the respondent to vary final orders under the slip rule, a claim for costs under the Calderbank principle, and a determination of costs on the appeal and cross-appeal. The initial dispute between the parties involved the division of property following a relationship breakdown. The court of appeal had awarded the respondent a specific sum, which she argued was not reflective of her contribution to the common endeavour as found by the primary judge.

The court examined whether the slip rule applied to the respondent’s application for variation of final orders. The slip rule allows for the correction of errors in the calculation or description of an award. The court also considered whether the sum awarded to the respondent accurately represented her contribution to the relationship, as determined by the primary judge. Regarding costs, the court assessed whether the respondent's success at trial entitled her to recover her costs from the appellants, despite receiving a lesser sum than their formal settlement offers. The court further deliberated on the appropriate allocation of costs on appeal and cross-appeal, given the appellants' substantial success on appeal and the dismissal of the cross-appeal.

The court ruled that there was no basis for applying the slip rule as the figure awarded to the respondent was indeed reflective of her contribution. The court also found that the informal offer made by the appellants prior to the proceedings did not obligate them to pay costs despite the respondent’s partial success. Additionally, since the appellants substantially succeeded on appeal, the court ordered the respondent to pay the appellants’ costs of the appeal, cross-appeal, and the application to vary final orders. The court concluded that each party should bear their own costs of the proceeding.

In summary, the court dismissed the respondent’s application for variation of final orders, ordered that each party bear their own costs of the proceeding, and required the respondent to pay the appellants’ costs of appeal, cross-appeal, and the application to vary final orders.

Orders

Orders of the court

1. The respondent’s application, filed 21 October 2015, be refused.

2. Each party bear their own costs of the proceeding.

3. The respondent pay the appellants’ costs of the appeal, cross-appeal and of the application filed on 21 October 2015, to be assessed on a standard basis.

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:	Nolan & Ors v Nolan [2016] QCA 5
PARTIES:	ANTHONY GERARD NOLAN (first respondent/first appellant) BRIAN KEVIN NOLAN (second respondent/second appellant) MAJELLA ANNE NOLAN (third respondent/third appellant) NOLAN & SON PTY LTD ACN 010 567 174 (fourth respondent/fourth appellant) v DONNA MAREE NOLAN (applicant/respondent)
FILE NO/S:	Appeal No 385 of 2015 SC No 3338 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal – Further Orders
ORIGINATING COURT:	Supreme Court at Brisbane – [2014] QSC 218
DELIVERED ON:	2 February 2016
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGES:	Gotterson and Morrison JJA and Boddice J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The respondent’s application, filed 21 October 2015, be refused. 2. Each party bear their own costs of the proceeding. 3. The respondent pay the appellants’ costs of the appeal, cross-appeal and of the application filed on 21 October 2015, to be assessed on a standard basis.
CATCHWORDS:	PROCEDURE – JUDGMENTS AND ORDERS – CORRECTION UNDER SLIP RULE – where respondent filed application seeking variation of final orders on basis of slip rule – whether there is a basis for the application of slip rule – whether the figure awarded to the respondent by the Court of Appeal reflected her contribution to the common endeavour, as found by the primary Judge PROCEDURE – COSTS – INFORMAL OFFERS AND CALDERBANK LETTERS – FAILURE IN PORTION OF CASE – where respondent received sum significantly less than any of the formal offers to settle made by the respondent – where a reasonable, informal offer was made by the appellants prior to commencement of proceedings – where that informal offer was not re-made during the proceedings – where respondent succeeded at trial, but failed in one aspect of her claim – whether any party is required to pay the other party’s costs of trial PROCEDURE – COSTS – where appellants substantially succeeded on appeal – where cross-appeal dismissed – where application to vary final orders refused – whether respondent is required to pay the appellants’ costs of appeal, cross-appeal and application to vary final orders
COUNSEL:	No appearance for the respondents/appellants, the respondents’/appellants’ submissions were heard on the papers No appearance for the applicant/respondent, the applicant’s/respondent’s submissions were heard on the papers
SOLICITORS:	Russells for the respondents/appellants Shine Lawyers for the applicant/respondent