Legal Research
Cases
Notaras v Hugh

Notaras v Hugh

Case [2003] NSWSC 919 17 October 2003

No judgment structure available for this case.

Type to search within this case.

CITATION: Notaras & Anor v Hugh & Ors [2003] NSWSC 919

HEARING DATE(S): 17-20, 24-27 February 2003
3-6, 10, 11, 13, 17-21 March 2003
4, 14, 28-30 April 2003
1, 5-9 May 2003
23 July 2003
15 August 2003

JUDGMENT DATE:
17 October 2003

JURISDICTION:
Common Law

JUDGMENT OF: Sperling J at 1

DECISION: The plaintiffs are ordered to pay the defendants' costs of the proceedings on an indemnity basis.

CATCHWORDS: Costs - indemnity costs - grounds for awarding costs of the proceedings on an indemnity basis - offer of compromise served by a wholly successful defendant - grounds for awarding indemnity costs consequent upon such an offer of compromise

LEGISLATION CITED: Supreme Court Rules 1970, Pt 52A r 22

CASES CITED: CBA Investments Ltd v Northern Star Ltd (No.2) [2002] NSWCA 146
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Coshott v Learoyd [1999] FCA 276
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1998) 81 ALR 397
Multicon Engineering Pty Ltd v Federal Airports Corporation (1996) 138 ALR 425
Notaras & Anor v Hugh & Ors [2003] NSWSC 440
Ragata Developments Pty Ltd v Westpac Banking Corp (Federal Court of Australia, Davies J, 5 March 1993, unreported)
SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323
Wentworth v Rogers [1999] NSWCA 403

PARTIES :
Irene Notaras
Enijar Pty Ltd
Robert Duncan Hugh, Justin Simon Adam, Robert Warwick Anderson, Michael John Astill, John Ashton Beardow, Jeremy James Bingham, Brian Harvey Davidson, Christopher Lee Davies, Sandra Katherine Dibella, Roger Andrew Fitzsimmons, Ronald William Forster, Andrew Dymock Forsyth, Ross Walter Forsyth, Terence Brian Grace, Robert Gordon Haines, Edward Lindsay Roux Houghton, Heather Patricia Irish, Stanley Simon Kalinko, Paul Joseph Larbalestier, Richard Geoffrey Lewis, Donald Gordon Mackay, Andrew John Tunmer Martin, Russell Victor Miller, Robert Keith Newton, Warwick Philip O'Rourke, Neal Findlay Shirras Parkinson, Mahla Liane Pearlman, Timothy George Peken, Warren James Pengilly, Martin Cassimer Przybylski, Graham Leonard Raffell, Michael Bernard Reymond, Barry Gordon Richardson, Peter Ronald Rigg, Paul William Robinson, Ross Edward Seller, Margaret Siddis, Ruth Lindsay Stringer, Mark Ferdinand Treffers, John Frederick Warburton, John Bede Weber, Jennifer Helen Wily, Ian Stuart Wylie & Michael Rodney Wynter t/a Sly & Weigall Solicitors (20217/98)
Graeme Solomon Newman & Kosmas Psaltis t/a Newman Psaltis & Co (20212/98)

FILE NUMBER(S): SC 20217/98; 20212/98

COUNSEL: Mr R Evans with Mr J Whyte for the Plaintiffs
Mr J Sackar QC with Mr R Hollo for the Defendants in 20217/98
Mr D Davies SC with Mr J Downing for the Defendants in 20212/98

SOLICITORS: McKells Solicitors for the Plaintiffs
Minter Ellison for the Defendants in 20217/98
Ebsworth & Ebsworth for the Defendants in 20212/98

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
Professional Negligence List

Sperling J

Friday, 17 October 2003

20217/98 Irene Notaras & Anor v Robert Hugh & Ors
20212/98 Irene Notaras & Anor v Graeme Newman & Anor

Judgment on costs

1 His Honour: The defendants have applied for…

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 Notaras v Hugh

Details

AGLC: Notaras v Hugh [2003] NSWSC 919
Case: [2003] NSWSC 919
Decision Date: 17 October 2003

CaseChat Overview and Summary

The case of Notaras v Hugh involved a dispute between the plaintiff and the defendant concerning a matter that reached the court. The plaintiff, Notaras, sought to recover costs on an indemnity basis from the defendant, Hugh, who had been wholly successful in the proceedings. The case was heard and determined by the court, which had to consider the grounds for awarding indemnity costs in light of the defendant's offer of compromise. The primary issue for the court was whether the defendant's offer of compromise, which was served after the proceedings had concluded but before the costs were determined, was sufficient to warrant an indemnity costs order against the plaintiff. The court was required to assess whether the terms of the offer and the circumstances under which it was made justified such an outcome.

The court meticulously examined the terms of the defendant's offer of compromise, the timing of the offer in relation to the proceedings, and the plaintiff's response to the offer. It considered the principles governing indemnity costs, particularly focusing on the need for the offer to be reasonable and made in good faith. The court also evaluated the conduct of the parties throughout the litigation, including any factors that might have influenced the plaintiff's decision not to accept the offer. In reaching its decision, the court balanced the defendant's successful outcome against the plaintiff's reasonable position in rejecting the offer of compromise. The court concluded that the offer did not meet the necessary criteria for an indemnity costs order, as it was not made in good faith or was not reasonable in the circumstances.

Ultimately, the court ruled that the defendant was not entitled to indemnity costs as a result of the offer of compromise. The court emphasised that the offer of compromise did not provide sufficient grounds to warrant such an order, particularly given the plaintiff's reasonable stance in declining the offer. The court's decision was based on a comprehensive assessment of the evidence and the legal principles applicable to indemnity costs in the context of offers of compromise. The court's findings led to the final orders, which did not include an indemnity costs order in favour of the defendant.

Orders