Papantoniou v Brown (No 2)
[2015] NSWCA 220
•03 August 2015
Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Papantoniou v Brown (No 2) [2015] NSWCA 220 Hearing dates: On the papers Decision date: 03 August 2015 Before: Beazley P, Macfarlan JA, Sackville AJA Decision: 1. On the taking of an account between the appellant (Ms Papantoniou) and the respondents (the Browns), an amount is payable by Ms Papantoniou to:
(a) the Estate of the late James Brown in the sum of $58,832.80;
(b) Mr Robert Brown in the sum of $59,353.49
2. Ms Papantoniou to pay the Estate of the late James Brown the sum of $58,832.80.
3. Ms Papantoniou to pay Robert Brown $757.18 noting that Ms Papantoniou has paid Mr Robert Brown $58,596.31 in reduction of the amount described at 1(b).
4. Ms Papantoniou to pay the Browns’ costs of her motion to extend the time for filing a notice of appeal.
5. Set aside Order (4) made by Campbell J on 10 June 2014 in relation to the First Cross-Claim.
6. Set aside Order (4) made by Campbell J on 10 June 2014 in relation to the Third Cross-Claim.
7. In lieu of the Orders referred to in Orders 5 and 6 above, make the following order:
The Browns pay Ms Papantoniou’s costs of the First and Third Cross-Claims.
8. Set aside Order (5) made by Campbell J on 10 June 2014 in relation to the Second Cross-Claim.
9. In lieu of the Order referred to in Order 8 above, there be no order as to the costs of the Second Cross-Claim.
10. The Browns pay 75 per cent of Ms Papantoniou’s costs of the appeal.
11. The Browns to have a certificate under the Suitors’ Fund Act 1951 (NSW).Catchwords: COSTS – offer of settlement – whether unreasonable to reject offer Legislation Cited: Suitors’ Fund Act 1951 (NSW) Cases Cited: Papantoniou v Brown [2015] NSWCA 168 Category: Costs Parties: S Papantoniou by her tutor Christodoulos Papantoniou (Appellant)
R Brown (First Respondent)
R Brown as executor of the Estate of the late James Anthony Thomas Brown (Second Respondent)Representation: Counsel:
Solicitors:
B Katekar / Ms J Little (Appellant)
MWE Maconachie (First and Second Respondents)
SRM Lawyers (Appellant)
Barwick Boitano Lawyers (First and Second Respondents)
File Number(s): 2014/190930 Decision under appeal
- Court or tribunal:
- Supreme Court of New South Wales
- Jurisdiction:
- Common Law Division
- Citation:
- [2014] NSWSC 685
[2014] NSWSC 746
[2014] NSWSC 885- Date of Decision:
- 30 May 2014; 10 June 2014; 3 July 2014
- Before:
- Campbell J
- File Number(s):
- 2010/28341
Judgment
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THE COURT: The Court delivered judgment in this appeal on 22 June 2015. [1] The Court allowed the appeal and in lieu of the orders made by the primary Judge dismissed the First and Third Cross-Claims.
1. Papantoniou v Brown [2015] NSWCA 168 (Principal Judgment).
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The following orders were also made:
7. Note that on the taking of an account between the appellant (Ms Papantoniou) and the respondents (the Browns), an amount is payable by Ms Papantoniou to the Browns calculated in accordance with these reasons for judgment.
8. Direct the parties to bring in agreed short minutes of order within fourteen days quantifying the amount payable by Ms Papantoniou to the Browns in accordance with these reasons for judgment and apportioning such amount between the Browns.
In the absence of agreement, the parties were directed to file their respective proposed short minutes of order, together with brief written submissions in support.
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The parties agree as to the calculations to be made to give effect to the Court’s reasons for judgment. Accordingly, they agree that the following orders should be made in addition to Orders 1-6 made on 22 June 2015:
1. On the taking of an account between the appellant (Ms Papantoniou) and the respondents (the Browns), an amount is payable by Ms Papantoniou to:
(a) the Estate of the late James Brown in the sum of $58,832.80;
(b) Mr Robert Brown in the sum of $59,353.49
2. Ms Papantoniou to pay the Estate of the late James Brown the sum of $58,832.80.
3. Ms Papantoniou to pay Robert Brown $757.18 noting that Ms Papantoniou has paid Mr Robert Brown $58,596.31 in reduction of the amount described at 1(b).
4. Ms Papantoniou to pay the Browns’ costs of her motion to extend the time for filing a notice of appeal.
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The remaining dispute is as to costs. Ms Papantoniou seeks orders that the Browns:
pay her costs of the First, Second and Third Cross-Claims as from 9 May 2011 on an indemnity basis and otherwise on the ordinary basis; and
pay her costs of the appeal on the ordinary basis.
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The Browns submit that the costs orders proposed (subject to submissions) in the Principal Judgment should be made. [2] Those orders are as follows:
“1. The Browns pay Ms Papantoniou’s costs of the first and third cross-claims.
2. There be no order as to the costs of the second cross-claim.
3. The Browns pay 75 per cent of Ms Papantoniou’s costs of the appeal.
4. The Browns to have a certificate under the Suitors’ Fund Act1951 (NSW).”
2. Principal Judgment at [145].
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The Principal Judgment explained why the proposed orders appeared to be appropriate:[3]
“These views reflect the Browns’ lack of success on the Cross-Claims and the fact that the Second Cross-Claim appears to have received little attention at the trial. Some discount should be made from the award of the costs of the appeal to Ms Papantoniou because it only became apparent late in the appeal that she was making some significant concessions as to the amount she should be required to pay to the Browns.”
3. Principal Judgment at [146].
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Ms Papantoniou’s claim for indemnity costs of the Common Law Division proceedings rests on a letter sent by her solicitors to the Browns’ solicitors on 9 May 2011. The letter offered to settle the proceedings on the basis that Ms Papantoniou pay the Browns $177,938.00. However, the letter proposed that this sum should be paid as follows:
$58,596.31 be released to the Browns from the trust account in which the moneys were held pending the outcome of the proceedings; and
the balance of $119,342.00 be paid in 36 monthly instalments of $3,315.05.
The letter did not offer to pay interest or to submit to a judgment for the full amount of the offer.
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The Browns’ solicitors responded on the same day, stating that their clients would not consider any offer that involved payment of instalments without a full and frank disclosure of all Ms Papantoniou’s assets and liabilities. The response also pointed out that the offer did not include interest.
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The following day Ms Papantoniou’s solicitors rejected the request that she disclose her assets and liabilities.
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On its face, Ms Papantoniou’s offer to pay the sum of $177,938.00 in settlement of the Browns’ claims, if accepted, seems to give the Browns a better result than the orders they in fact obtained. The orders made by this Court require Ms Papantoniou to pay only a total of $118,186.29.
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However, the offer contemplated that most of the moneys payable by Ms Papantoniou would be paid by monthly instalments over a period of three years. As has been noted, no interest was to be payable and the offer did not incorporate an agreement to submit to judgment for the amount offered. In these circumstances and in the absence of an offer to provide security for the agreement to pay by instalments, it was not at all unreasonable for the Browns to reject the offer. Quite apart from the need to discount the nominal value of the amount to be paid by instalments, in the absence of security the Browns could not be assured of timely payment and could not attribute a precise value to the offer.
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Ms Papantoniou has not advanced any cogent arguments against the costs orders proposed in the Principal Judgment. The fact that Ms Papantoniou sought an order for account in the Second Cross-Claim does not alter the fact that little attention was paid to that claim at the trial. And, contrary to Ms Papantoniou’s submissions, she made concessions on the appeal as to quantum. It is one thing to seek an order for account; it is another to establish the amount due when accounts are taken.
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The following orders, additional to those made on 22 June 2015 and those referred to in [3] above should be made:
5. Set aside Order (4) made by Campbell J on 10 June 2014 in relation to the First Cross-Claim.
6. Set aside Order (4) made by Campbell J on 10 June 2014 in relation to the Third Cross-Claim.
7. In lieu of the Orders referred to in Orders 5 and 6 above, make the following order:
The Browns pay Ms Papantoniou’s costs of the First and Third Cross-Claims.
8. Set aside Order (5) made by Campbell J on 10 June 2014 in relation to the Second Cross-Claim.
9. In lieu of the Order referred to in Order 8 above, there be no order as to the costs of the Second Cross-Claim.
10. The Browns pay 75 per cent of Ms Papantoniou’s costs of the appeal.
11. The Browns to have a certificate under the Suitors’ Fund Act 1951 (NSW).
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Endnotes
Decision last updated: 03 August 2015
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