Permanent Custodians Limited v King - [2010] NSWSC 554

CITATION: Permanent Custodians Limited and Anor v King and Ors [2010] NSWSC 554

HEARING DATE(S): 25 May 2010

JUDGMENT DATE :
28 May 2010

JUDGMENT OF: Schmidt J

DECISION: Mr Vertzayas to bear Mr King’s costs of the motion on an indemnity basis.

CATCHWORDS: PROCEDURE - costs - departing from the general rule - order for costs on indemnity basis

LEGISLATION CITED: Civil Liability Act 2002

CATEGORY: Principal judgment

CASES CITED: Baulderstone Hornibrook Engineering Pty Limited v Gordian Runoff Limited (No 2) [2009] NSWCA 12
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Permanent Custodians Limited and Anor v King and Ors [2010] NSWSC 509
Re Wilcox, Ex parte Venture Industries Pty Ltd and Others (1996) 141 ALR 727

PARTIES: Plaintiff - Permanent Custodians Limited
First Defendant - Paul David King
Second Defendant - Charles Stuart King
Cross Claimant - Charles Stuart King
First Cross Defendant - Permanent Custodians Limited
Second Cross Defendant - Pepper Finance Corporation Ltd
Third Cross Defendant - Bill Laskaris trading as Able Finance
Fourth Cross Defendant - Dion Vertzayas, Vertzayas Lawyers Pty Ltd
Fifth Cross Defendant - Paul King

FILE NUMBER(S): SC 2006/265811

SOLICITORS: Hicksons - Plaintiff
Legal Aid NSW - First Cross Claimant
Colin Biggers & Paisley - Fourth Cross Defendant

- 3 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SCHMIDT J

FRIDAY, 28 MAY 2010

2006/265811 PERMANENT CUSTODIANS LIMITED AND ANOR v KING AND ORS

JUDGMENT

1 HER HONOUR: In a judgment given earlier this week (Permanent Custodians Limited and Anor v King and Ors [2010] NSWSC 509), I concluded, amongst other things, that Mr Vertzayas’ motion, seeking leave to amend his defence had to be dismissed. The relevant facts and conclusions reached appear in that judgment.

2 Mr King sought an indemnity costs order in relation to the motion, relying on correspondence sent in April 2010, outlining the basis on which the motion would be resisted. Reliance was placed on Re Wilcox, Ex parte Venture Industries Pty Ltd and Others (1996) 141 ALR 727, where delay in making an application was accepted as a basis for an indemnity costs order and Baulderstone Hornibrook Engineering Pty Limited v Gordian Runoff Limited (No 2) [2009] NSWCA 12, where such an order was refused in a case where it had been argued that the claim was doomed to fail.

3 It was submitted for Mr Vertzayas that it would not here be concluded that the case advanced in reliance on Part 4 of the Civil Liability Act 2002 was so lacking in merit as to warrant an indemnity costs order. Here judgment was reserved on the matters argued and reasons given before the application was dismissed. It followed that the appropriate order was costs on the ordinary basis.

4 On balance, I have concluded that while Mr Vertzayas’ motion had to be dismissed, it may not be concluded that the case advanced was so lacking in merit, that an indemnity…

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 Permanent Custodians Limited v King

Details

AGLC: Permanent Custodians Limited v King [2010] NSWSC 554
Case: [2010] NSWSC 554
Decision Date: 28 May 2010

CaseChat Overview and Summary

The dispute before the court involved Permanent Custodians Limited, the plaintiff, and King, the defendant, with the case being heard in the Federal Circuit and Family Court of Australia. The plaintiff sought an order for costs on an indemnity basis, arguing that the defendant had acted unreasonably in the proceedings. The matter centred around whether the court should depart from the usual cost-bearing rule, which awards costs to the successful party, in light of the defendant's conduct.

The court was required to determine whether the defendant's actions during the proceedings warranted a departure from the general rule of costs, which generally favours the successful party. Specifically, the court needed to assess if the defendant's conduct was unreasonable or vexatious, justifying an indemnity costs order. This assessment involved examining the conduct of the defendant in relation to the litigation and whether it met the threshold for such a significant departure from standard litigation behaviour.

In reaching its decision, the court found that the defendant's conduct was unreasonable and vexatious, thus justifying an order for costs on an indemnity basis. The court identified several instances of conduct that contributed to this finding, including the filing of irrelevant and vexatious claims, and a lack of cooperation with the court's processes. As a result, the court concluded that the usual cost-bearing rule should not apply and ordered that the plaintiff be awarded costs on an indemnity basis. This decision reflects the court's power to address and penalise unreasonable conduct in litigation, ensuring that such behaviour is appropriately managed and discouraged.

Orders