Perry v Kinnear (No. 6) - [2021] NSWDC 273

District Court

New South Wales

Medium Neutral Citation: Perry v Kinnear & Ors (No. 6) [2021] NSWDC 273
Hearing dates: 7 May 2021 - (written submissions)
18 May 2021 - (written submissions)
27 May 2021
Date of orders: 27 May 2021
Decision date: 27 May 2021
Jurisdiction: Civil
Before: Montgomery DCJ
Decision:
(1)   I note the defendant’s undertaking to file a notice of motion and pay the appropriate fee in regard to this application;
(2)   The notice of motion embodying the defendant's application for a special order for costs is dismissed;
(3)   Each party is to pay their own costs of the motion.

Catchwords:
COSTS — Party/Party — Bases of quantification — Indemnity basis
CIVIL PROCEDURE – Procedural and Other Reasons

Legislation Cited:
Evidence Act 1995 (NSW) ss 131(1), ss 131(2)(h)
Uniform Civil Procedure Rules 2005 (NSW) ss 20.26, 36.16, 36.16(3A), 42.13, 42.14, 42.15, 42.15A(2)(a), 42.15A(2)(b).

Cases Cited:
Calderbank v Calderbank [1975] 3 All ER 333
Perry v Kinnear & Ors (No. 1) [2020] NSWDC 887
Perry v Kinnear & Ors (No. 2) [2020] NSWDC 888
Perry v Kinnear & Ors (No. 3) [2020] NSWDC 889
Perry v Kinnear & Ors (No. 4) [2020] NSWDC 890
Perry v Kinnear & Ors (No. 5) [2021] NSWDC 145

Category: Costs
Parties:
Mrs Isabell Perry (Plaintiff)

Mr Ian Kinnear (First Defendant)
Mrs Leisha Kinnear (Second Defendant)
Representation:
Mr D Elliott (Plaintiff)

Mr D Brezniak (First & Second Defendants)

Solicitors:

Gerard Malouf & Partners (Plaintiff)
Paul & Labuzin Lawyers (First & Second Defendants)

File Number(s): 2018/00106299

Judgment

On 30 April 2021, I delivered the Principal Judgment in this matter (Perry v Kinnear & Ors (No. 5) [2021] NSWDC 145) with the following Orders.

Judgment for the defendants

Plaintiff to pay the defendants’ costs.

I also made the following Orders:

On or before Tuesday 11 May 2021 the defendants serve the plaintiff with any notice of application for costs and any affidavit in support of application in relation to costs.

On or before 18 May 2021 the plaintiff to serve any evidence on the application in relation to costs.

I return the matter before me for hearing in relation to costs on Thursday 27 May 2021, with an estimate of one day.

The defendants move for Orders “by reason of application of Rule 42.15A(2)(a) and (b)” that the plaintiff pay the defendants’ costs as agreed or as assessed on the Ordinary basis up to 22 April 2019, and thereafter on an indemnity basis.
The defendants submit that on 22 April 2019 the defendants forwarded a letter to the plaintiff making an offer on a “without prejudice” basis, which offer the plaintiff rejected by letter on the 5^th July 2019. The defendants submit that the terms of the Judgment are no less favourable to themselves, it is submitted secured a result “no less favourable than the term of the offer”. The defendants do not seek to put into evidence the correspondence of the making and rejection of the offer because the defendants “conceive…

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 Perry v Kinnear (No. 6)

Details

AGLC: Perry v Kinnear (No. 6) [2021] NSWDC 273
Case: [2021] NSWDC 273
Decision Date: 27 May 2021

CaseChat Overview and Summary

The case of Perry v Kinnear (No. 6) involves an application by the defendant, Kinnear, for a special order for costs under the indemnity basis. The dispute arose from previous litigation between the parties, with the current application seeking a determination on the appropriate method for quantifying costs. The case was heard by the court, which had to determine the legal principles applicable to the quantification of costs and the appropriateness of the indemnity basis in this context.

The primary legal issue before the court was whether the indemnity basis was the correct method for quantifying costs in the current application. The court considered the relevant case law and statutory provisions that govern the awarding of costs in civil proceedings. It examined the principles established in earlier cases, particularly those dealing with the distinction between the party/party and indemnity bases of quantification.

The court found that the defendant's application for a special order for costs was not appropriate in this instance. It concluded that the indemnity basis was not the correct method for quantifying costs in this particular application. The court held that each party should bear their own costs of the motion, reflecting its view that neither party was entitled to an indemnity order. Consequently, the defendant's application was dismissed, and the court ordered that each party was to pay their own costs of the motion.

Orders

Orders of the court

(1) I note the defendant’s undertaking to file a notice of motion and pay the appropriate fee in regard to this application;

(2) The notice of motion embodying the defendant's application for a special order for costs is dismissed;

(3) Each party is to pay their own costs of the motion.

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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Perry v Kinnear & Ors (No. 6) [2021] NSWDC 273
Hearing dates:	7 May 2021 - (written submissions) 18 May 2021 - (written submissions) 27 May 2021
Date of orders:	27 May 2021
Decision date:	27 May 2021
Jurisdiction:	Civil
Before:	Montgomery DCJ
Decision:	(1) I note the defendant’s undertaking to file a notice of motion and pay the appropriate fee in regard to this application; (2) The notice of motion embodying the defendant's application for a special order for costs is dismissed; (3) Each party is to pay their own costs of the motion.
Catchwords:	COSTS — Party/Party — Bases of quantification — Indemnity basis CIVIL PROCEDURE – Procedural and Other Reasons
Legislation Cited:	Evidence Act 1995 (NSW) ss 131(1), ss 131(2)(h) Uniform Civil Procedure Rules 2005 (NSW) ss 20.26, 36.16, 36.16(3A), 42.13, 42.14, 42.15, 42.15A(2)(a), 42.15A(2)(b).
Cases Cited:	Calderbank v Calderbank [1975] 3 All ER 333 Perry v Kinnear & Ors (No. 1) [2020] NSWDC 887 Perry v Kinnear & Ors (No. 2) [2020] NSWDC 888 Perry v Kinnear & Ors (No. 3) [2020] NSWDC 889 Perry v Kinnear & Ors (No. 4) [2020] NSWDC 890 Perry v Kinnear & Ors (No. 5) [2021] NSWDC 145
Category:	Costs
Parties:	Mrs Isabell Perry (Plaintiff) Mr Ian Kinnear (First Defendant) Mrs Leisha Kinnear (Second Defendant)
Representation:	Mr D Elliott (Plaintiff) Mr D Brezniak (First & Second Defendants) Solicitors: Gerard Malouf & Partners (Plaintiff) Paul & Labuzin Lawyers (First & Second Defendants)
File Number(s):	2018/00106299