Pel-Air Aviation Pty Ltd v Casey (No 2) - [2017] NSWCA 92

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Pel-Air Aviation Pty Ltd v Casey (No 2) [2017] NSWCA 92
Hearing dates: On the papers
Decision date: 10 May 2017
Before: Macfarlan JA; Ward JA; Gleeson JA
Decision:
(1)   Judgment for Ms Casey in the sum of $5,224,818, to take effect on the date of this judgment.
(2)   Order Pel-Air to pay Ms Casey’s costs of the assessment at first instance of Ms Casey’s funds management damages.
(3)   Subject to Order (2), order Pel-Air to pay Ms Casey’s costs of the proceedings at first instance:
(a)   on the ordinary basis up to and including 30 January 2015 and
(b)   after 30 January 2015 on an indemnity basis.
(4)   Order Ms Casey to pay 50% of Pel-Air’s costs of its appeal.
(5)   Order Pel-Air to pay Ms Casey’s costs of her cross-appeal.

Catchwords: APPEAL – costs – no issue of principle
Legislation Cited: Uniform Civil Procedure Rules 2005
Category: Costs
Parties: Pel-Air Aviation Pty Ltd (Appellant)
Karen Casey by her manager the National Australia Trustee Ltd (Respondent)
Representation:
Counsel:
J E Sexton SC / D Lloyd (Appellant)
R S McIlwaine SC / G R Graham (Respondent)
Solicitors:
GSG Legal (Appellant)
Everett Evans (Respondent)

File Number(s): CA 2015/171223
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law

Citation:

[2015] NSWSC 566

Date of Decision:

15 May 2016

Before:

Schmidt J

File Number(s):

SC 2010/385262; 2011/46508

Judgment

THE COURT: On 9 March 2017 the Court gave judgment on this appeal ([2017] NSWCA 32). It allowed both Pel-Air’s appeal and Ms Casey’s cross-appeal, set aside the judgment and orders made below and directed the parties to lodge written submissions concerning quantification of the judgment to be entered in Ms Casey’s favour in conformity with the Court’s reasons for judgment and dealing with issues as to costs. Submissions were lodged in accordance with the timetable specified.
In these submissions and subsequent correspondence the parties agreed that judgment should be entered in Ms Casey’s favour in the sum of $5,224,818, to take effect from the date of this Court’s judgment. The agreed figure excluding interest accruing after the orders at first instance was $5,045,337. The Court was not informed of the precise makeup of this figure but Ms Casey’s submissions in chief identify the components of the almost identical figure of $5,045,936.50 which she then claimed as $4,173,936.50 prior to funds management expenses of $872,000.
The parties also agreed that an order should be made that Pel-Air pay Ms Casey’s costs of the assessment at first instance of Ms Casey’s funds management expenses. They did not suggest that the order made at first instance in relation to the remainder of the first instance costs was no longer appropriate. As that order (order (3) made on 21 March 2016) was set aside by this Court’s judgment on 9 March 2017, it should be re-made.
The parties were at issue as to the orders that should be made concerning the costs…

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

Case: [2017] NSWCA 92
Decision Date: 10 May 2017

CaseChat Overview and Summary

Pel-Air Aviation Pty Ltd appealed to the New South Wales Court of Appeal against a judgment of the Supreme Court of New South Wales. The dispute concerned damages awarded to Ms Casey following an incident involving Pel-Air. The appeal primarily concerned the assessment of costs.

The Court of Appeal was required to determine the appropriate orders for the costs of the proceedings at first instance and the costs of the appeal itself. Specifically, the court had to consider whether the costs of the proceedings at first instance should be awarded on an ordinary or indemnity basis for different periods, and how the costs of the appeal and cross-appeal should be allocated between the parties.

The Court of Appeal found that there was no issue of principle regarding the costs of the appeal. Consequently, the court ordered that Pel-Air pay Ms Casey’s costs of her cross-appeal. However, the court ordered that Ms Casey pay 50% of Pel-Air’s costs of its appeal. Regarding the costs of the proceedings at first instance, Pel-Air was ordered to pay Ms Casey’s costs of the assessment of her funds management damages, and otherwise on the ordinary basis up to 30 January 2015, and on an indemnity basis thereafter.

Orders

Orders of the court

(1) Judgment for Ms Casey in the sum of $5,224,818, to take effect on the date of this judgment.

(2) Order Pel-Air to pay Ms Casey’s costs of the assessment at first instance of Ms Casey’s funds management damages.

(3) Subject to Order (2), order Pel-Air to pay Ms Casey’s costs of the proceedings at first instance:

(a) on the ordinary basis up to and including 30 January 2015 and

(b) after 30 January 2015 on an indemnity basis.

(4) Order Ms Casey to pay 50% of Pel-Air’s costs of its appeal.

(5) Order Pel-Air to pay Ms Casey’s costs of her cross-appeal.

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.

Medium Neutral Citation:	Pel-Air Aviation Pty Ltd v Casey (No 2) [2017] NSWCA 92
Hearing dates:	On the papers
Decision date:	10 May 2017
Before:	Macfarlan JA; Ward JA; Gleeson JA
Decision:	(1) Judgment for Ms Casey in the sum of $5,224,818, to take effect on the date of this judgment. (2) Order Pel-Air to pay Ms Casey’s costs of the assessment at first instance of Ms Casey’s funds management damages. (3) Subject to Order (2), order Pel-Air to pay Ms Casey’s costs of the proceedings at first instance: (a) on the ordinary basis up to and including 30 January 2015 and (b) after 30 January 2015 on an indemnity basis. (4) Order Ms Casey to pay 50% of Pel-Air’s costs of its appeal. (5) Order Pel-Air to pay Ms Casey’s costs of her cross-appeal.
Catchwords:	APPEAL – costs – no issue of principle
Legislation Cited:	Uniform Civil Procedure Rules 2005
Category:	Costs
Parties:	Pel-Air Aviation Pty Ltd (Appellant) Karen Casey by her manager the National Australia Trustee Ltd (Respondent)
Representation:	Counsel: J E Sexton SC / D Lloyd (Appellant) R S McIlwaine SC / G R Graham (Respondent) Solicitors: GSG Legal (Appellant) Everett Evans (Respondent)
File Number(s):	CA 2015/171223
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: [2015] NSWSC 566 Date of Decision: 15 May 2016 Before: Schmidt J File Number(s): SC 2010/385262; 2011/46508