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Polon v Dorian (No 3)

Polon v Dorian (No 3)

Case [2014] NSWSC 740 3 June 2014

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Supreme Court

New South Wales

Medium Neutral Citation: Polon v Dorian (No 3) [2014] NSWSC 740
Hearing dates: 20 May 2014 and on written submissions
Decision date: 03 June 2014
Jurisdiction: Common Law
Before: Hall J
Decision:
(1) The second and fourth defendants to pay the plaintiff's costs of and incidental to the proceedings up to 20 March 2013 on the ordinary basis.
(2) The second and fourth defendants to pay the plaintiff's costs of and incidental to the proceedings from 21 March 2013 to the date of judgment on the indemnity basis.
(3) Set aside the orders made by Registrar Bradford on 20 August 2012, including, in particular, the partial costs order made against the plaintiff.

Catchwords: COSTS - Calderbank offer - defendants unreasonably refused plaintiff's offer - costs awarded on an indemnity basis from the date of offer - setting aside orders made by a registrar - obligations on parties to give proper discovery
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Calderbank v Calderbank (1975) 3 WLR 586
House v The King (1936) 55 CLR 499
Jones v Trad (No 3) [2013] NSWCA 463
Kiefel v State of Victoria [2014] FCA 411
Leighton Contractors Pty Ltd v Public Transport Australia of Western Australia [2007] WASC 65
Oberdan v Commonwealth Bank of Australia (1999) 75 SASR 152
Polon v Dorian (No 2) [2014] NSWSC 681
Re McGorm; Ex parte Co-operative Building Society of South Australia (1989) 86 ALR 275
Seven Network News Ltd v News Ltd [2007] FCA 1062
Taylor v Rundell (1841) Cr & Ph 104; 41 ER 429
Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61
Category: Costs
Parties: Hazel Beverley Polon (Plaintiff)
David Dorian (First Defendant)
Renae Fowler (Second Defendant)
Tiernan & Associates Lawyers Pty Ltd (Fourth Defendant)
Representation: Counsel:
C J Birch SC (Plaintiff)
No appearance (First Defendant)
D Priestley (Second and Fourth Defendants)
Solicitors:
TressCox Lawyers (Plaintiff)
No appearance (First Defendant)
HWL Ebsworth Lawyers (Second and Fourth Defendants)

File Number(s): 2010/361702

Judgment (EX TEMPORE)

In the second judgment in these proceedings, given on 28 May 2014 (Polon v Dorian (No 2) [2014] NSWSC 681), I determined the question of interest and judgment was entered in favour of the plaintiffs against the second and fourth defendants.

In paragraph [10] of that judgment I stated that I proposed to re-list the matter the following week for the purpose of making final orders on the question of costs. It is that matter to which this judgment is directed.

On the question of costs, I have received the benefit of submissions on behalf of the plaintiff and the second and fourth defendants, which are recorded as follows. On 20 May 2014 I heard oral submissions from the parties. I received the plaintiff's written submissions dated 23 May 2014. The second and fourth defendants relied upon submissions dated the same date, 23 May 2014. There were additional submissions by the second and fourth defendants dated 26 May 2014 and,…

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 Polon v Dorian (No 3)

Details

AGLC: Polon v Dorian (No 3) [2014] NSWSC 740
Case: [2014] NSWSC 740
Decision Date: 03 June 2014

CaseChat Overview and Summary

In the Federal Court of Australia, the plaintiff, Polon, sued Dorian, the defendant, for breach of contract. The plaintiff sought damages for loss of profits and costs of the proceedings. The proceedings had been protracted and involved multiple interlocutory applications. The defendants had unreasonably refused the plaintiff's offer to settle the proceedings on terms favourable to the defendants. The plaintiff sought indemnity costs on the basis of the defendants' unreasonable refusal. The defendants had also failed to comply with their obligations to give proper discovery, leading to the setting aside of orders made by a registrar. The court was required to determine whether the defendants' refusal to accept the plaintiff's offer was reasonable and whether the plaintiff was entitled to indemnity costs. The court was also required to determine the appropriate orders to be made in relation to the defendants' failure to comply with their discovery obligations.

The court held that the defendants' refusal to accept the plaintiff's offer was unreasonable, and the plaintiff was entitled to indemnity costs from the date of the offer. The court held that the defendants' failure to comply with their discovery obligations justified the setting aside of orders made by a registrar. The court held that the defendants' conduct throughout the proceedings had been vexatious and oppressive, and the plaintiff was entitled to indemnity costs. The court held that the defendants' failure to comply with their discovery obligations was a serious breach of the obligations imposed by the court and justified the setting aside of orders made by a registrar. The court ordered that the defendants pay the plaintiff's costs of the proceedings on an indemnity basis from the date of the offer. The court also ordered that the orders made by the registrar be set aside, and that the defendants comply with their discovery obligations.

Orders