Nolan v Nolan (No. 2) - [2014] QSC 286

SUPREME COURT OF QUEENSLAND

CITATION:

Nolan v Nolan & Ors (No. 2) [2014] QSC 286

PARTIES:

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

FILE NO:

3338/10

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

25 November 2014

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers. Further submissions as to the form of the orders and costs provided on 8, 9 and 15 September 2014

JUDGE:

Ann Lyons J

ORDER:

The parties are to prepare a minute of orders in accordance with these reasons by 28 November 2014.

CATCHWORDS:

INTEREST – WHERE EQUITABLE RELIEF OR FIDUCIARY RELATIONSHIP – where the defendants submit that the plaintiff is precluded from obtaining interest as it was not included in her claim – where the plaintiff raised the issue of interest in its closing submissions

PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON THE INDEMNITY BASIS – where judgment was delivered for the plaintiff –where the plaintiff claimed that she should receive costs on an indemnity basis because she obtain a judgment more favourable than at least one of her previous offers to settle– where the defendants submitted that the plaintiff should pay the defendants’ costs on the basis that she received a judgment less favourable than the “Calderbank style” offer from the defendants.

Uniform Civil Procedure Rules 1999 (Qld), r 360(1)

Haines v Bendall (1991) 172 CLR 60

Nolan v Nolan & Ors [2014] QSC 218

COUNSEL:

A Greinke with G Watson for the plaintiff

K A Barlow QC with P J McCafferty for the defendants

SOLICITORS:

Shine Lawyers for the plaintiff

Russells Lawyers for the defendants

On 29 August 2014 I delivered judgment for the plaintiff in Nolan v Nolan & Ors,[1] finding that the parties carried on a common endeavour and accordingly a constructive trust could be imposed on the property, Kitcombe.
[1][2014] QSC 218.

In those reasons I indicated that the parties were to provide submissions as to the form of the orders and costs in this matter by 5 September 2014. On 8 September 2014, the plaintiff provided its submissions and the defendants’ submissions were provided on 9 September 2014 with further submissions provided by the plaintiff on 15 September 2014.

In that decision I indicated that, taking a broad brush approach, I would value Donna’s share of the common endeavour at $405,000. I accept that there was an omission of $27,500 by not taking into account the value of the motor vehicle. I am satisfied, however, that pursuant to the slip rule that figure should be adjusted to take into account the value of the motor vehicle at $27,500 as final orders have not been pronounced. Accordingly, Donna’s share of the common endeavour is $432,500. Incorporating the deduction for Donna’s rent-free accommodation which is currently $69,300, which I will discuss at…

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 (No. 2)

Details

AGLC: Nolan v Nolan (No. 2) [2014] QSC 286
Case: [2014] QSC 286
Decision Date: 25 November 2014

CaseChat Overview and Summary

In the case of Nolan v Nolan (No. 2), the dispute before the court involved the question of whether the plaintiff was entitled to interest on a judgment sum, as well as the apportionment of costs between the parties. The case was heard in the Supreme Court of Queensland.

The central legal issues the court had to address were whether the plaintiff was precluded from claiming interest because it was not specified in her initial claim, and if so, whether the court had the discretion to order costs on an indemnity basis. The court also had to determine the appropriate allocation of costs between the parties, considering the varying offers to settle made throughout the litigation process.

The court found that the plaintiff was not precluded from claiming interest, as the issue had been adequately raised in the closing submissions. Regarding costs, the court concluded that the plaintiff was entitled to indemnity costs because the final judgment was more favourable than one of her previous offers to settle. The defendants' submission that the plaintiff should bear their costs was rejected as the judgment was less favourable than a "Calderbank style" offer from the defendants.

The final orders of the court mandated that the parties prepare a minute of orders in accordance with these reasons by 28 November 2014.

Orders

Orders of the court

The parties are to prepare a minute of orders in accordance with these reasons by 28 November 2014.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Nolan v Nolan & Ors (No. 2) [2014] QSC 286
PARTIES:	DONNA MAREE NOLAN (plaintiff) v ANTHONY GERARD NOLAN (first defendant) BRIAN KEVIN NOLAN (second defendant) MAJELLA ANNE NOLAN (third defendant) NOLAN & SON PTY LTD ACN 010 567 174 (fourth defendant)
FILE NO:	3338/10
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	25 November 2014
DELIVERED AT:	Brisbane
HEARING DATE:	On the papers. Further submissions as to the form of the orders and costs provided on 8, 9 and 15 September 2014
JUDGE:	Ann Lyons J
ORDER:	The parties are to prepare a minute of orders in accordance with these reasons by 28 November 2014.
CATCHWORDS:	INTEREST – WHERE EQUITABLE RELIEF OR FIDUCIARY RELATIONSHIP – where the defendants submit that the plaintiff is precluded from obtaining interest as it was not included in her claim – where the plaintiff raised the issue of interest in its closing submissions PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON THE INDEMNITY BASIS – where judgment was delivered for the plaintiff –where the plaintiff claimed that she should receive costs on an indemnity basis because she obtain a judgment more favourable than at least one of her previous offers to settle– where the defendants submitted that the plaintiff should pay the defendants’ costs on the basis that she received a judgment less favourable than the “Calderbank style” offer from the defendants. Uniform Civil Procedure Rules 1999 (Qld), r 360(1) Haines v Bendall (1991) 172 CLR 60 Nolan v Nolan & Ors [2014] QSC 218
COUNSEL:	A Greinke with G Watson for the plaintiff K A Barlow QC with P J McCafferty for the defendants
SOLICITORS:	Shine Lawyers for the plaintiff Russells Lawyers for the defendants