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Perry v Perry (No 2)

Perry v Perry (No 2)

Case [2022] NSWSC 1462 27 October 2022

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Supreme Court

New South Wales

Medium Neutral Citation: Perry v Perry (No 2) [2022] NSWSC 1462
Hearing dates: 23 June 2022
Date of orders: 27 October 2022
Decision date: 27 October 2022
Jurisdiction: Equity
Before: Robb J
Decision:
See [55] below.

Catchwords:
COSTS — party/party — general rule that costs follow the event — whether to apportion costs as between different issues where there has been mixed success — parties to bear own costs save for in respect of one issue — exceptions to general rule that costs follow the event — offers of compromise/Calderbank offers — whether unreasonable for plaintiff to reject Calderbank offer — rejection not unreasonable

Cases Cited:
Herning v GWS Machinery Pty Ltd (No 2) [2005] NSWCA 375
In the matter of Commercial Indemnity Pty Ltd [2016] NSWSC 1125
In the matters of Earth Civil Australia Pty Ltd, RCG CBD Pty Ltd, Bluemine Pty Ltd, Diamondwish Pty Ltd and Rackforce Pty Ltd (all in liq) (No 2) [2021] NSWSC 1161
Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344
Perry v Perry [2021] NSWSC 1669
Singleton v Macquarie Broadcasting Holdings Ltd (1991) 24 NSWLR 103

Category: Consequential orders
Parties: Tanya Lynette Perry (Plaintiff)
Anne Lynette Perry (First Defendant)
Mark William Perry (Second Defendant)
Michelle Perry (Third Defendant)
Louise Anne Perry (Fourth Defendant)
Representation:
Counsel:
J Needham SC (Plaintiff)
J Gooley & RM Higgins (Defendants)
Solicitors:
HWL Ebsworth Lawyers (Plaintiff)
Reynolds & Reynolds Legal Services (Defendants)

File Number(s): 2016/00336648

JUDGMENT

The principal judgment in these proceedings was delivered on 17 December 2021: Perry v Perry [2021] NSWSC 1669 ("J").
It remains necessary for the Court to make final orders and to deal with the costs of the proceedings. The plaintiff provided written submissions dated 15 June 2022 and the defendants responded on 15 June 2022. By leave, the defendants delivered a supplementary written submission on 30 June 2021. Senior counsel for the plaintiff responded by email to my tipstaff dated 1 July 2022, which led to the receipt of further emails from senior counsel and the junior counsel for the defendants dated 7 July 2022.
It was necessary in the principal judgment to deal with a significant number of separate but, in some cases, overlapping issues that were raised by the parties' pleadings. Those issues were explained at length at J [34]-[142]. The length and complexity of the reasons in the principal judgment require that I assume for the purposes of these reasons that the reader has knowledge of the content of the full judgment. In J [502], I summarised my conclusions concerning the relief sought by the plaintiff. In J [503], I set out in summary form the principal findings that I had made on the evidence.
As was the case in the principal judgment, and without meaning any disrespect, I will henceforth refer to the parties by their given names.

Orders proposed by the parties

Both Tanya, the plaintiff, and the other members of her family, the defendants, provided proposed…

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 Perry (No 2)

Details

AGLC: Perry v Perry (No 2) [2022] NSWSC 1462
Case: [2022] NSWSC 1462
Decision Date: 27 October 2022

CaseChat Overview and Summary

The case of Perry v Perry (No 2) involved the parties, Mr. and Mrs. Perry, who were engaged in a financial dispute. The matter came before the court to resolve issues relating to the distribution of their matrimonial assets, and to address a specific offer of compromise made by Mr. Perry, referred to as a Calderbank offer. The court was tasked with determining whether it was unreasonable for Mrs. Perry to reject this offer, and consequently, whether the general rule that costs follow the event should be departed from in this instance.

The primary legal issue before the court was whether the rejection of a Calderbank offer constituted an unreasonable course of action, warranting a departure from the general principle that costs follow the event. Additionally, the court needed to decide if the costs incurred by both parties should be apportioned between different issues, given that there had been mixed success in their respective claims.

In delivering its judgment, the court noted that a Calderbank offer is a significant tool in encouraging parties to settle disputes without proceeding to trial. However, the court emphasised that the reasonableness of rejecting such an offer must be assessed on a case-by-case basis. The court found that, in this instance, Mrs. Perry's decision to reject the offer was not unreasonable, given the circumstances. Consequently, the court concluded that the general rule that costs follow the event should not be departed from, and both parties were to bear their own costs, except in respect of one specific issue. This decision was grounded in the court's assessment that the rejection of the Calderbank offer was not unreasonable, and that the parties should not be penalised for their respective positions.

The court's final orders were that the parties were to bear their own costs, save for in respect of one particular issue where a different apportionment was made. This decision highlighted the importance of assessing the reasonableness of rejecting a Calderbank offer and the court's reluctance to depart from the general rule regarding the allocation of costs.

Orders