Legal Research
Cases
Saba v Plumb

Saba v Plumb

Case [2017] NSWSC 955 18 July 2017

Costs

Limitation Periods

Admissibility of Evidence

Civil Litigation & Procedure

Type to search within this case.

Supreme Court

New South Wales

Case Name:	Saba v Plumb & Anor
Medium Neutral Citation:	[2017] NSWSC 955
Hearing Date(s):	Question of costs determined on the papers
Decision Date:	18 July 2017
Jurisdiction:	Equity - Real Property List
Before:	Black J
Decision:	The Defendants’ application for indemnity costs is dismissed with costs.
Catchwords:	COSTS — Party/Party — Bases of quantification — Indemnity basis – Application by Defendants for indemnity costs – whether Plaintiff alleged fraud unnecessarily and without notice – whether Plaintiff’s claims lacked a proper basis – whether Plaintiff’s issue of subpoenas and notices to produce caused undue costs – whether Plaintiff’s evidence and cross-examination excessively broad in scope COSTS — Party/Party – Application for gross sum costs order – where Court lacks requisite evidence to quantify costs in gross sum – where hearing on gross sum may incur further wasted costs
Legislation Cited:	- Civil Procedure Act 2005 (NSW), s 98 - Conveyancing Act 1919 (NSW), s 37A - Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 42.2, 42.5
Cases Cited:	- Allplastics Engineering Pty Ltd v Dornoch Ltd [2006] NSWCA 33 - Cabport Pty Ltd v Marinchek (No 2) [2013] NSWCA 131 - Hamod v State of New South Wales [2002] FCAFC 97; (2002) 188 ALR 659 - Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23 - Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (No 7) [2008] NSWSC 199; (2008) 65 ACSR 324 - Leichhardt Municipal Council v Green [2004] NSWCA 341 - Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 - Re Australasian Barrister Chambers Pty Ltd (in liq) [2017] NSWSC 695 - Saba v Plumb [2017] NSWSC 622 - Simone Starr-Diamond v Talus Diamond (No 4) [2013] NSWSC 811 - Westpac Banking Corporation v Ollis [2007] NSWSC 1008 - White Constructions (ACT) Pty Ltd (in liq) v White [2004] NSWSC 303
Texts Cited:	- Ritchie’s Uniform Civil Procedure NSW
Category:	Costs
Parties:	Anthony Michael Saba (Plaintiff/Second Cross-Defendant) Noel Plumb (First Defendant/First Cross-Defendant) Jeanette Minifie (Second Defendant/Cross-Claimant)
Representation:	Counsel: P Barham (Plaintiff/Second Cross-Defendant) P Glissan (First Defendant/First Cross-Defendant) C Alexander (Second Defendant/Cross-Claimant) Solicitors: Fraser Clancy (Plaintiff/Second Cross-Defendant) Lexes Lawyers (Second Defendant/Cross-Claimant)
File Number(s):	2016/110233

Judgment

On 19 May 2017, I delivered judgment ([2017] NSWSC 622) (“Judgment”) in proceedings brought by Mr Anthony Saba seeking an order under s 37A of the Conveyancing Act 1919 (NSW) that a transfer of a one-quarter share in property at East Ryde by the First Defendant, Mr Noel Plumb, to the Second Defendant, Ms Jeanette Minifie, was voidable and consequential relief. I held that Mr Saba’s claim should be dismissed and that Ms Minifie’s Cross-Claim, which sought to establish a constructive or resulting trust over that property and consequential orders, should be dismissed in consequence. I observed that, in the ordinary course, Mr Saba would be ordered to pay Mr Plumb’s and Ms Minifie’s costs of and incidental to the proceedings, including the costs of…

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 Saba v Plumb

Details

AGLC: Saba v Plumb [2017] NSWSC 955
Case: [2017] NSWSC 955
Decision Date: 18 July 2017

CaseChat Overview and Summary

Saba v Plumb involved a complex dispute between the parties over allegations of fraud and misrepresentation, which was heard in the Supreme Court of Victoria. The plaintiff, Saba, sought damages for breach of contract and misrepresentation against the defendants, Plumb. The defendants applied for indemnity costs, arguing that the plaintiff had unnecessarily alleged fraud without proper basis, issued excessive subpoenas and notices to produce, and conducted excessively broad evidence and cross-examination. Additionally, the defendants sought a gross sum costs order, contending that the court lacked the requisite evidence to quantify costs accurately.

The legal issues before the court included whether the plaintiff had improperly alleged fraud, whether the plaintiff's claims were baseless, whether the subpoenas and notices to produce issued by the plaintiff caused undue costs, and whether the plaintiff's evidence and cross-examination were excessively broad in scope. Furthermore, the court had to determine whether the evidence was sufficient to justify a gross sum costs order.

The court held that the plaintiff had not improperly alleged fraud and that the plaintiff's claims had a proper basis. The court also found that the plaintiff's issue of subpoenas and notices to produce did not cause undue costs, and the evidence and cross-examination were not excessively broad. Consequently, the court dismissed the defendants' application for indemnity costs. Regarding the gross sum costs order, the court concluded that the evidence was insufficient to justify such an order, as doing so might incur further wasted costs. The court denied the defendants' application for a gross sum costs order.

The court's final orders were that the defendants' application for indemnity costs was dismissed, and the application for a gross sum costs order was also dismissed.

Orders