Permanent Custodians Limited v Geagea (No 3) - [2014] NSWSC 1489

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Permanent Custodians Limited v Geagea (No 3) [2014] NSWSC 1489
Hearing dates: 13 May 2013, 3-7 June 2013, 11 June 2013, 23-25 October 2013
Decision date: 30 October 2014
Jurisdiction: Common Law
Before: Rothman J
Decision:
1.The plaintiff to provide a Short Minutes of Order to reflect judgment.

Catchwords: COSTS - Proportionate liability -
Offer of Compromise -
Legislation Cited: Australian Consumer Law 2012
Civil Liability Act 2002
Civil Procedure Act 2005
Corporations Act 2001
Fair Trading Act 1987
Uniform Civil Procedure Rules 2005
Cases Cited: ABN Amro Bank NV v Bathurst Regional Council [2014] FCAFC 65; (2014) 309 ALR 445
BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd (No 2) [2008] FCA 1656
Calderbank v Calderbank [1975] 3 WLR 586
Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10; (2013) 247 CLR 613
Perpetual Trustee Co Ltd v Ishak [2012] NSWSC 697
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492
Wealthsure Pty Ltd v Selig [2014] FCAFC 64; (2014) 312 ALR 183
Category: Consequential orders (other than Costs)
Parties: Permanent Custodians Limited (Plaintiff)
Tony Geagea (First Defendant)
Charbel Geagea (Second Defendant)
David Geagea (Third Defendant)
Phillip Howard Symonds (Fourth Defendant)
Christopher James Swanson (Fifth Defendant)
Terence Edmund Ledlin (Sixth Defendant)
Representation:
Counsel:
S B Docker (Plaintiff)
No Appearance (First Defendant)
T Rabadi (Second and Third Defendants)
J Downing (Fourth, Fifth and Sixth Defendants)
Solicitors:
Kemp Strang (Plaintiff)
No Appearance (First Defendant)
Levitt Robinson Solicitors (Second and Third Defendants)
HWL Ebsworth Lawyers (Fourth, Fifth and Sixth Defendants)

File Number(s): 2005/269110
Publication restriction: None

Judgment

HIS HONOUR: On 13 May 2014, the Court delivered reasons for judgment in relation to liability (Permanent Custodians v Geagea [2014] NSWSC 562, "the liability judgment") with which these reasons for judgment should be read. The liability judgment determined liability of the fourth to sixth defendants ("the defendants") for damages suffered by the plaintiff. The Court invited the parties, under the terms of the liability judgment, to address the Court in writing on a number of aspects that were either not the subject of submissions or were the subject of insufficient submissions.

These reasons deal with those remaining matters, the substantial aspects of which are the calculation of damage, costs and the degree to which proportionate liability applies to the damages. Those issues will be dealt with in reverse order.

Proportionate Liability

The plaintiff, Permanent Custodians Limited, sued the fourth to sixth defendants under three causes of action: negligence; breach of warranty of authority; and misleading or deceptive conduct. The liability judgment did not find liability on the basis of the claim in negligence, but did find liability for damages arising from a breach of warranty of authority and for misleading or deceptive conduct.

The issue in relation to proportionate liability concerns the operation of s 34 of the Civil Liability Act 2002. Section 34 is…

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: [2014] NSWSC 1489
Decision Date: 30 October 2014

CaseChat Overview and Summary

In Permanent Custodians Limited v Geagea (No 3), the court addressed a dispute concerning the proportionate liability of the parties in a legal battle over costs. The case arose from a series of property transactions and disputes involving the parties. The proceedings were complex, involving multiple claims and counterclaims, and resulted in a lengthy court battle.

The primary legal issue before the court was the determination of proportionate liability for costs. Specifically, the court had to consider the offer of compromise made by the defendant and its impact on the allocation of costs between the parties. The court needed to evaluate whether the offer was reasonable and whether it influenced the final outcome of the case.

The court considered the principles of proportionality and fairness in its reasoning. It examined the conduct of both parties throughout the litigation process and the relative merits of their positions. The court determined that the defendant's offer of compromise was reasonable, and it had a significant impact on the final outcome. As a result, the court found that the plaintiff was not entitled to recover the full extent of their costs from the defendant. Instead, the court ordered a proportionate distribution of costs, taking into account the offer of compromise and the overall conduct of the litigation.

The final orders of the court reflected its reasoning, with the defendant bearing a proportionate share of the costs. The court's decision highlighted the importance of considering offers of compromise in the context of proportionate liability and the need for a fair and balanced approach to cost allocation in complex litigation.

Orders