Nolan v Nolan

Case [2003] VSC 136


IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7568 of 2001

MOSCA GAI JINX MARGARET ELLERY NOLAN Plaintiff
v
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

Calderbank letters – Applicable Principles................................................................................ 10

Conclusion......................................................................................................................................... 16

HER HONOUR:

Issues in Dispute

  1. 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. 

  1. 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.”

  1. 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.”

  1. 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.”

  1. Generally, costs follow the event.  “Event” in this context is not limited to the ultimate outcome but…

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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.

Orders

Orders of the court

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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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