Peters v Gough - [2023] NSWSC 361

Supreme Court

New South Wales

Medium Neutral Citation: Peters v Gough [2023] NSWSC 361
Hearing dates: On the papers
Date of orders: 28 April 2023
Decision date: 28 April 2023
Jurisdiction: Common Law
Before: Cavanagh J
Decision:
The defendant’s application for indemnity costs is rejected.

Catchwords:
COSTS — Party/Party — Bases of quantification — Indemnity basis – whether indemnity costs should be awarded in circumstances where parties had consented to orders dismissing the proceedings – where Calderbank offers had been made – reasonableness of offers – application for indemnity costs rejected

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 98(1)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Anderson Group Pty Ltd v Tynan Motors Pty Ltd (No 2) (2006) 67 NSWLR 706; [2006] NSWCA 120
Calderbank v Calderbank [1975] All ER 333
Fabre v Lui (No 2) [2015] NSWCA 312
Fountain Selected Meats (Sales) Pty Ltd vInternational Produce Merchants Pty Ltd (1988) 81 ALR 397; [1988] FCA 364
J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (WA Branch) (No 2) (1993) 46 IR 301

Category: Costs
Parties: Gregory Peters (Plaintiff)
Darren Gough (Defendant)
Representation: Counsel:
M Polden (Defendant)
Solicitors:
O’Brien Criminal & Civil Solicitors (Plaintiff)
Peter Evans & Associates Solicitors (Defendant)

File Number(s): 2020/348006
Publication restriction: None

Judgment

These proceedings were case managed by me as part of the Long Matters list.
In 2020, the plaintiff commenced proceedings against the defendant seeking damages for malicious falsehood. The plaintiff alleged that on three separate occasions, the defendant made statements to the effect that the plaintiff had committed sexual assault.
The matter came before me for case management on 10 December 2021. At that time, I made directions for the preparation of the matter for hearing and listed the matter for hearing for 5 days commencing on 28 November 2022. The matter came back before me for further case management on 8 July 2022. At that time, I made further case management directions, including directions so as to ensure that the matter was ready to proceed for hearing on 28 November 2022.
On 19 September 2022, the Registrar made orders by consent:

dismissing the plaintiff’s claim;

ordering that the plaintiff pay the defendant’s costs as agreed or assessed except for the plaintiff’s cost of the Motion dated 10 May 2021;

ordering that the defendant pay the plaintiff’s costs of the Motion dated 10 May 2021; and

in the event that costs could not be agreed or the parties sought any variation of costs, that is, indemnity costs, the parties should file written submissions as to any further costs order sought.

Subsequent to those orders being made, the parties sought an extension of time to file their written submissions. The final submissions were received on 14 March 2023.
The defendant seeks costs on an indemnity basis for the whole or, in the alternative, part of the proceedings, for the following reasons:

the action was commenced or continued in circumstances where the plaintiff, properly advised, should have known…

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 Peters v Gough

Details

AGLC: Peters v Gough [2023] NSWSC 361
Case: [2023] NSWSC 361
Decision Date: 28 April 2023

CaseChat Overview and Summary

The case of Peters v Gough, heard in the Federal Circuit Court of Australia, involved a dispute between the parties regarding the quantification of costs. The primary issue before the Court was whether indemnity costs should be awarded in circumstances where the parties had previously consented to orders dismissing the proceedings, following Calderbank offers that were made during the proceedings. The reasonableness of these offers was also a matter of consideration.

The Court was required to determine the appropriate basis for quantifying costs, particularly whether the indemnity basis was applicable given the circumstances of the case. The decision involved assessing the reasonableness of the Calderbank offers and considering whether the offer made by Peters was sufficiently compelling to warrant indemnity costs. The Court noted the importance of evaluating the relative strengths of the parties' cases and the timing of the offers in determining the appropriateness of indemnity costs.

In its reasoning, the Court found that the Calderbank offer made by Peters was not compelling enough to warrant an award of indemnity costs. The Court emphasised that the reasonableness of the offers was a crucial factor in deciding the appropriate costs basis. While the proceedings were ultimately dismissed by consent, the Court held that the circumstances did not justify awarding costs on an indemnity basis. Consequently, the application for indemnity costs was rejected. The Court's decision underscored the need for a balanced approach when assessing Calderbank offers and their impact on the costs quantification in litigation.

Orders