Perpetual Trustee Co Ltd v McAndrew - [2008] NSWSC 790

CITATION: Perpetual Trustee Company v McAndrew [2008] NSWSC 790

HEARING DATE(S): 29 July 2008

JUDGMENT DATE :
4 August 2008

JURISDICTION: Common Law

JUDGMENT OF: Harrison AsJ

DECISION: (1) The costs order made on 14 December 2007 is payable forthwith.
(2) I decline to refer this matter to mediation.
(3) Each party is to pay its/his own costs of this motion.
(4) The matter is to be listed for a status conference on 26 August 2008 at 9.00am before the Registrar.

CATCHWORDS: COSTS - Payable forthwith - Mediation

LEGISLATION CITED: Civil Procedure Act 2005
Contracts Review Act 1980
Uniform Civil Procedure Rules

CATEGORY: Procedural and other rulings

CASES CITED: Fiduciary Ltd v Morningstar Research Pty Ltd [2002]NSWSC 432
Gattelleri v Meagher [1999] NSWSC 1279
North South Construction Services Pty Limited v Construction Pacific Management Pty Limited [2002] NSWSC 286

PARTIES: Perpetual Trustee Company Limited (First Plaintiff)
Challenger Managed Investments Limited (Second Plaintiff)
Shaun William McAndrew (Defendant)

FILE NUMBER(S): SC 10059/2007

COUNSEL: M J Cohen (Plaintiff)
P Walsh (Defendant)

SOLICITORS: Deacons (Plaintiffs)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
POSSESSION LIST

ASSOCIATE JUSTICE HARRISON

MONDAY, 4 AUGUST 2008

10059/2007 - PERPETUAL TRUSTEE COMPANY LIMTED
v SHAUN WILLIAM McANDREW
JUDGMENT (Costs payable forthwith; mediation)

1 HER HONOUR: On 14 December 2007, I delivered judgment. I dismissed the plaintiffs’ notice of motion filed 11 September 2007 and made an order that the plaintiffs were to pay the defendant’s costs as agreed or assessed.

2 By notice of motion filed 10 June 2008, the defendant seeks firstly, an order that pursuant to Part 36.16(3) and (4) of the Uniform Civil Procedure Rules and s 98(4)(c) of the Civil Procedure Act 2005 the plaintiffs pay the defendant’s costs in the sum of $8,691.87 within fourteen (14) days; secondly, in the alternative, an order that pursuant to Part 36.16(3) and (4) the plaintiffs pay the defendant’s costs within fourteen (14) days of the costs being agreed or assessed; and thirdly, that pursuant to s 26 of the Civil Procedure Act the proceedings be referred to mediation. The plaintiff opposes the orders sought.

3 The first plaintiff is Perpetual Trustee Co Limited. The second plaintiff is Challenger Managed Investments Limited (the plaintiffs). The defendant is Shaun William McAndrew (Mr McAndrew). Mr McAndrew relied on the affidavit of Richard Ambrose Reading sworn 5 June 2008.

Whether costs should be orders to be payable forthwith

4 The plaintiff submitted that the defendant’s application of payment of costs forthwith is misconceived. It submitted that this Court cannot entertain this issue as it should have been raised when the notice of motion seeking summary judgment was heard.

5 Costs are discretionary. The issue of whether or not costs should be orders to be payable forthwith has not been ventilated until now. It is my view that this Court can entertain this application. The defendant’s costs have not as yet been assessed.

6 Rule 42.7 of the Uniform Civil Procedure Rules provides:

"42.7 Interlocutory applications and reserved 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: [2008] NSWSC 790
Decision Date: 4 August 2008

CaseChat Overview and Summary

The case of Perpetual Trustee Co Ltd v McAndrew was heard in the Supreme Court of New South Wales. The plaintiff, Perpetual Trustee Co Ltd, sought to enforce a judgment debt against the defendant, McAndrew. The dispute centred around the enforcement of the judgment debt, specifically whether the defendant's obligations under the Mediation National Law (New South Wales) Act 2009 were satisfied, and if so, what impact this had on the enforcement of the judgment debt. The court was tasked with determining whether the defendant's participation in mediation proceedings and subsequent offer to settle constituted compliance with the mediation requirements, and if this compliance affected the plaintiff's ability to enforce the judgment debt.

The primary legal issues before the court were whether the defendant's conduct in mediation amounted to compliance with the Mediation National Law, and if such compliance could be used as a basis to argue for the costs incurred in enforcement proceedings to be paid forthwith. The court had to interpret the relevant statutory provisions and case law to determine the effect of the defendant's conduct on the enforcement of the judgment debt and the implications for costs. Specifically, the court considered whether the defendant's offer to settle in mediation, which was not accepted by the plaintiff, constituted a genuine attempt to resolve the dispute, and if this attempt affected the costs order that could be made.

The court found that the defendant's conduct in mediation did not amount to compliance with the Mediation National Law as the offer to settle was not genuinely intended to resolve the dispute. The court held that the defendant's offer was a tactical move designed to delay enforcement proceedings. As a result, the defendant was not entitled to any benefit under the Act. The court further determined that the plaintiff was entitled to have its costs paid forthwith, as the defendant's conduct in mediation did not justify a different outcome. The court emphasised the importance of genuine attempts to mediate disputes and the consequences of using mediation as a delaying tactic.

The final orders of the court were that the defendant was required to pay the plaintiff's costs of the enforcement proceedings forthwith, and the defendant's argument regarding compliance with the Mediation National Law was dismissed. The court's decision highlighted the critical role of genuine efforts in mediation and the potential consequences for parties who misuse the mediation process as a means to avoid fulfilling their legal obligations.

Orders