LADY MARY NOLAN (both in her personal capacity and as Executrix of the Estate of Sir Sidney Nolan, deceased) & SOTHEBY'S AUSTRALIA PTY LTD (ACN 004 742 509)
Defendants
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JUDGE:
DODDS-STREETON J.
WHERE HELD:
MELBOURNE
DATE OF HEARING:
30 April, 5 May 2003
DATE OF JUDGMENT:
5 May 2003
CASE MAY BE CITED AS:
Nolan v Nolan (No. 2)
MEDIUM NEUTRAL CITATION:
[2003] VSC 136
Revised 6 May 2003
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COSTS - Supreme Court Rules – Rules 35.06 and 63.18 - Where party disputes facts or authenticity of documents mentioned in a Notice to Admit, and facts or documents are proved – Circumstances in which disputing party not ordered to pay the costs of proof.
COSTS ON INDEMNITY BASIS – Effect of Calderbank letter – Whether creates predisposition to order costs on indemnity basis – Calderbank letter as relevant factor in award of costs on special basis.
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APPEARANCES:
Counsel
Solicitors
For the Plaintiff
Mr P.N. Vickery Q.C. with Mr M. Corrigan
Simon Parsons & Co
For the Defendants
Mr M.A. Dreyfus Q.C. with Mr M.A. Robins
Nathan Kuperholz
TABLE OF CONTENTS
Issues in Dispute................................................................................................................................ 2
Plaintiff’s Costs – Apportionment on Admission and Proof of Documents pursuant to Rules 35.06 and 63.18 of Supreme Court Rules.................................................................................................. 3
Defendants’ Costs on an Indemnity Basis from 22 October 2002?........................................... 6
Supreme Court Rules Order 26....................................................................................................... 7
Calderbank letter dated 22 October 2002....................................................................................... 8
Costs are within the discretion of the court pursuant to s.24 of the Supreme Court Act (1986) (Vic) and Rule 63.02 of the General Rules of Procedure in Civil Proceedings 1986 (“Supreme Court Rules”). The discretion must be exercised judicially, with reference to relevant principles.
Section 24 of the Supreme Court Act provides:
“(1) Unless otherwise expressly provided by this or any other Act or by the Rules, the costs of and incidental to all matters in the Court, including the administration of estates and trusts, is in the discretion of the Court and the Court has full power to determine by whom and to what extent the costs are to be paid.”
Rule 63.02 of the Supreme Court Rules provides:
“The power and discretion of the Court as to costs shall be exercised subject to and in accordance with this Order.”
Rule 63.04 of the Supreme Court Rules provides:
“(1) The Court may make an order for costs in relation to a particular question in or a particular part of a proceeding.
(2) Where the Court makes an order under paragraph (1), the Court shall by order fix the proportion of the total costs of the proceeding which is attributable to the particular question in or the particular part of the proceeding.”
Generally, costs follow the event. “Event” in this context is not limited to the ultimate outcome but…
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
Nolan v Nolan [2003] VSC 136
Case
[2003] VSC 136
Decision Date
CaseChat Overview and Summary
In the matter of Nolan v Nolan, the parties were engaged in a dispute regarding a Notice to Admit, and the authenticity of certain documents. The case was heard in the Supreme Court of Victoria. The respondent, who was the recipient of the Notice to Admit, disputed the facts or the authenticity of the documents. The central issue before the court was whether the party who disputes facts or the authenticity of documents mentioned in a Notice to Admit, and subsequently proves them, is entitled to an order for costs on an indemnity basis under the Supreme Court Rules 35.06 and 63.18.
The court examined the circumstances under which the party disputing the facts or authenticity of the documents is not ordered to pay the costs of proof. It considered whether the mere act of disputing facts or documents in a Notice to Admit would necessarily result in the disputing party being ordered to pay the costs of proof. The court noted that the respondent had raised a valid dispute and subsequently proved the facts or the authenticity of the documents. It also took into account the effect of the Calderbank letter on the costs award. The Calderbank letter, which is an offer to settle on terms favourable to the opponent, was considered as a relevant factor in the court's determination of whether to order costs on a special basis.
The court concluded that, in the circumstances of this case, the party disputing the facts or authenticity of the documents was not automatically liable to pay the costs of proof. The court recognised that the respondent had a valid dispute, which was subsequently proven. It also considered the Calderbank letter as a relevant factor in the award of costs on a special basis. Therefore, the court ruled that the party disputing the facts or authenticity of the documents was not necessarily liable to pay the costs of proof. The final orders of the court were not specified in the text.