Rogers v Rogers (No 2) - [2020] NSWSC 574

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Rogers v Rogers (No 2) [2020] NSWSC 574
Hearing dates: On the papers
Date of orders: 15 May 2020
Decision date: 15 May 2020
Jurisdiction: Equity
Before: Darke J
Decision:
Plaintiff ordered to pay first defendant’s costs of the proceedings (not including the first defendant’s costs of the cross-claim) on the ordinary basis. No order as to costs of the cross-claim.

Catchwords: COSTS – indemnity costs – indemnity costs sought against unsuccessful plaintiff – plaintiff failed to accept “walk away” Calderbank offer – whether offer involved a genuine compromise – whether plaintiff’s failure to accept Calderbank offer unreasonable – held that plaintiff did not act unreasonably where aspects of transaction not known to plaintiff, and defendants’ evidence not yet served – where cross-claim dismissed because it did not arise – costs ordered against plaintiff on ordinary basis not including costs of cross-claim
Legislation Cited: Civil Procedure Act 2005 (NSW), s 98
Cases Cited: Commonwealth of Australia v Gretton [2008] NSWCA 117
Rogers v Rogers [2020] NSWSC 392
Category: Costs
Parties: John William Rogers (Plaintiff/First Cross-Defendant)
Samantha Leanne Rogers (First Defendant/Cross-Claimant)
David Bruce Rogers (Second Defendant/Second Cross-Defendant)
Darren Falla (Third Defendant)
Gloria Rose Falla (Fourth Defendant)
Barry James Webster (Fifth Defendant)
Adam Shepard (Sixth Defendant)
Suncorp Metway Ltd (Seventh Defendant)
Representation:
Counsel:
Mr J M Ireland QC (Plaintiff/First Cross-Defendant)
Mr A D Crossland (First Defendant/Cross-Claimant)
Solicitors:
McGirr Lawyers (Plaintiff/First Cross-Defendant)
Pure Legal (First Defendant/Cross-Claimant)

File Number(s): 2018/371392
Publication restriction: None

Judgment

On 9 April 2020 the Court delivered a judgment in this matter in respect of a number of questions that were ordered to be determined separately from and in advance of all other questions in the proceedings (see Rogers v Rogers [2020] NSWSC 392).
The questions were answered adversely to the plaintiff. In those circumstances, an order was made that the proceedings be otherwise dismissed. An order was also made that a cross-claim, brought by the first defendant against the plaintiff and the second defendant, be dismissed. None of the other parties played an active role in the hearing of the separate questions.
In relation to costs, directions were made for the parties to endeavour to reach agreement as to the appropriate orders to be made, failing which brief written submissions were to be provided by 30 April 2020. Agreement was not reached, and the Court has received submissions on costs from the plaintiff and the first defendant. No submissions were provided by the second defendant. The second defendant was represented at the hearing by Counsel, but aside from giving evidence, the second defendant played an insignificant role in the hearing.
In brief, the plaintiff accepts that an order for costs should be made in favour of the first defendant on the ordinary basis, but that the order should not extend to the costs of the cross-claim.
The first defendant seeks an order that the plaintiff pay her costs of the proceedings (including the cross-claim) on the ordinary basis…

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 Rogers v Rogers (No 2)

Details

AGLC: Rogers v Rogers (No 2) [2020] NSWSC 574
Case: [2020] NSWSC 574
Decision Date: 15 May 2020

CaseChat Overview and Summary

The case involved a dispute between two parties, Rogers, in the Supreme Court of New South Wales. The plaintiff sought to recover indemnity costs from the defendants, who were unsuccessful in their defence. The plaintiff had not accepted a “walk away” offer made by the defendants, an offer that is known as a Calderbank offer. The central issue for the court was whether the plaintiff acted unreasonably by not accepting the offer, and if the offer constituted a genuine compromise. Additionally, the court needed to determine if the plaintiff's failure to accept the offer was unreasonable, given that certain aspects of the transaction were unknown to the plaintiff and the defendants' evidence had not yet been served.

The court found that the plaintiff had not acted unreasonably in declining the Calderbank offer, as there were aspects of the transaction that the plaintiff was not aware of at the time, and the defendants' evidence had not yet been served. This meant that the plaintiff could not be expected to make an informed decision regarding the offer. The court also noted that the cross-claim brought by the defendants was dismissed because it did not arise from the proceedings. Given these findings, the court concluded that the plaintiff's failure to accept the Calderbank offer was not unreasonable. Therefore, the plaintiff was not liable for indemnity costs.

The court ordered that costs be awarded against the plaintiff on an ordinary basis. However, these costs did not include the expenses associated with the dismissed cross-claim. This decision underscored the importance of considering all relevant circumstances when assessing the reasonableness of a party's decision not to accept a Calderbank offer. The court's ruling provided guidance on the application of indemnity costs in cases where a party declines to accept such an offer, particularly where there are incomplete facts and pending evidence.

Orders