Riechelmann v McCabe (No 2) - [2024] NSWCA 62

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Riechelmann v McCabe (No 2) [2024] NSWCA 62
Hearing dates: On the papers
Date of orders: 20 March 2024
Decision date: 20 March 2024
Before: Mitchelmore JA; Kirk JA; Stern JA
Decision:
(1)   The Registrar of this Court is directed to refer the papers in this proceeding to the Office of the Legal Services Commissioner.
(2)   Order 4 made by this Court on 23 February 2024 is varied so that it reads as follows: “As regards costs of the proceedings in the District Court, orders 2 and 3 made by that Court on 20 July 2023 in relation to costs of the cross-claim are set aside, and in lieu thereof it is ordered that the cross-defendant pays 75% of the cross-claimant’s costs of the cross-claim.”
(3)   The appellant’s application for indemnity costs in prayer 1 of her notice of motion filed on 8 March 2024 is dismissed.
(4)   There is no order as to costs in relation to the parties’ applications to vary this Court’s orders as made on 23 February 2024.

Catchwords:
COSTS – Late substantial amendment to cross-claim – Amendment would have been vigorously fought even if made earlier – Allowance made for lengthening of hearing caused
COSTS – Indemnity costs application rejected – Purported offer of compromise and Calderbank offer

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 42.1, 42.13A(3)

Cases Cited:
Australian Prudential Regulation Authority v Holloway [2000] FCA 1245; (2000) 35 ACSR 276
Beoco Ltd v Alfa Laval Co Ltd [1993] EWCA Civ 22; [1995] QB 137
Cellarit Pty Ltd v Cawarrah Holdings Pty Ltd (No 2) [2018] NSWCA 266
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (No 2) [2014] NSWCA 425
Riechelmann v McCabe [2024] NSWCA 37
Vero Insurance Ltd v Australian Prestressing Services Pty Ltd (No 2) [2014] NSWCA 8

Category: Costs
Parties: Julie Riechelmann (Appellant)
David Terance McCabe (Respondent)
Representation:
Counsel:
J Morris SC with M Bridger (Appellant)
J W Dodd (Respondent)
Solicitors:
De Luca-Leonardo Solicitor (Appellant)
McCabe Partners Lawyers (Respondent)

File Number(s): 2023/88479
Publication restriction: N/A
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Civil

Citation:

McCabe v Riechelmann [2023] NSWDC 44

Date of Decision:

21 February 2023

Before:

Dicker DCJ

File Number(s):

2018/365976

JUDGMENT

THE COURT: On 23 February 2024 the Court upheld the appeal of Ms Riechelmann from a decision of the District Court which had dismissed a cross-claim made by her against the respondent, Mr McCabe: Riechelmann v McCabe [2024] NSWCA 37 (First Judgment). The Court made the following orders:

1. Appeal allowed.
2. The respondent is to pay the appellant’s costs of the appeal.
3. Order 3 made by the District Court on 21 February 2023 is set aside and the following orders are made in lieu thereof:
a. Judgment for the cross-claimant against the cross-defendant on the Cross-claim in the sum of $136,000;
b. The cross-defendant is to pay interest on the judgment sum from 21…

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 Riechelmann v McCabe (No 2)

Details

AGLC: Riechelmann v McCabe (No 2) [2024] NSWCA 62
Case: [2024] NSWCA 62
Decision Date: 20 March 2024

CaseChat Overview and Summary

In *Riechelmann v McCabe (No 2)*, the Court of Appeal of the Supreme Court of New South Wales considered an application for indemnity costs and the appropriate orders for costs in the District Court following a late and substantial amendment to a cross-claim. The dispute concerned the costs associated with the cross-claim, particularly in light of an amendment that significantly altered the nature of the proceedings.

The primary legal issues before the Court of Appeal were whether the appellant was entitled to indemnity costs, and how the costs of the cross-claim in the District Court should be apportioned, given the late amendment to the cross-claim. The Court also had to determine the costs of the parties' applications to vary the Court's earlier orders.

The Court rejected the application for indemnity costs, finding that neither a purported offer of compromise nor a *Calderbank* offer justified such an award. Regarding the District Court costs, the Court varied its previous order, setting aside the original costs orders made by the District Court in relation to the cross-claim. In lieu thereof, the Court ordered that the cross-defendant pay 75% of the cross-claimant’s costs of the cross-claim. This adjustment reflected the fact that the amendment to the cross-claim, even if made earlier, would have been vigorously contested, and an allowance was made for the consequent lengthening of the hearing. The Court also directed that the papers in the proceeding be referred to the Office of the Legal Services Commissioner.

Finally, the Court dismissed the appellant's application for indemnity costs and made no order as to costs in relation to the parties' applications to vary the Court's earlier orders.

Orders

Orders of the court

(1) The Registrar of this Court is directed to refer the papers in this proceeding to the Office of the Legal Services Commissioner.

(2) Order 4 made by this Court on 23 February 2024 is varied so that it reads as follows: “As regards costs of the proceedings in the District Court, orders 2 and 3 made by that Court on 20 July 2023 in relation to costs of the cross-claim are set aside, and in lieu thereof it is ordered that the cross-defendant pays 75% of the cross-claimant’s costs of the cross-claim.”

(3) The appellant’s application for indemnity costs in prayer 1 of her notice of motion filed on 8 March 2024 is dismissed.

(4) There is no order as to costs in relation to the parties’ applications to vary this Court’s orders as made on 23 February 2024.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Riechelmann v McCabe (No 2) [2024] NSWCA 62
Hearing dates:	On the papers
Date of orders:	20 March 2024
Decision date:	20 March 2024
Before:	Mitchelmore JA; Kirk JA; Stern JA
Decision:	(1) The Registrar of this Court is directed to refer the papers in this proceeding to the Office of the Legal Services Commissioner. (2) Order 4 made by this Court on 23 February 2024 is varied so that it reads as follows: “As regards costs of the proceedings in the District Court, orders 2 and 3 made by that Court on 20 July 2023 in relation to costs of the cross-claim are set aside, and in lieu thereof it is ordered that the cross-defendant pays 75% of the cross-claimant’s costs of the cross-claim.” (3) The appellant’s application for indemnity costs in prayer 1 of her notice of motion filed on 8 March 2024 is dismissed. (4) There is no order as to costs in relation to the parties’ applications to vary this Court’s orders as made on 23 February 2024.
Catchwords:	COSTS – Late substantial amendment to cross-claim – Amendment would have been vigorously fought even if made earlier – Allowance made for lengthening of hearing caused COSTS – Indemnity costs application rejected – Purported offer of compromise and Calderbank offer
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 42.1, 42.13A(3)
Cases Cited:	Australian Prudential Regulation Authority v Holloway [2000] FCA 1245; (2000) 35 ACSR 276 Beoco Ltd v Alfa Laval Co Ltd [1993] EWCA Civ 22; [1995] QB 137 Cellarit Pty Ltd v Cawarrah Holdings Pty Ltd (No 2) [2018] NSWCA 266 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (No 2) [2014] NSWCA 425 Riechelmann v McCabe [2024] NSWCA 37 Vero Insurance Ltd v Australian Prestressing Services Pty Ltd (No 2) [2014] NSWCA 8
Category:	Costs
Parties:	Julie Riechelmann (Appellant) David Terance McCabe (Respondent)
Representation:	Counsel: J Morris SC with M Bridger (Appellant) J W Dodd (Respondent) Solicitors: De Luca-Leonardo Solicitor (Appellant) McCabe Partners Lawyers (Respondent)
File Number(s):	2023/88479
Publication restriction:	N/A
Decision under appeal	Court or tribunal: District Court Jurisdiction: Civil Citation: McCabe v Riechelmann [2023] NSWDC 44 Date of Decision: 21 February 2023 Before: Dicker DCJ File Number(s): 2018/365976