Sciacca v Langshaw Valuations Pty Ltd (No 2) - [2013] NSWSC 1476

Supreme Court

New South Wales

Medium Neutral Citation: Sciacca v Langshaw Valuations Pty Ltd (No 2) [2013] NSWSC 1476
Hearing dates: 4 October 2013
Decision date: 08 October 2013
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1) Order the third defendant to pay the plaintiffs' costs of the motion filed on 20 August 2012 and the amended motion filed on 12 July 2013, including the costs of the hearing on 4 October 2013.

Catchwords: PRACTICE AND PROCEDURE- costs- application for orders forthwith- conduct of unsuccessful party not unreasonable
Legislation Cited: - Corporations Act 2001 (Cth), s 601AG
Cases Cited: - Fiduciary Ltd v Morningstar Research Pty Ltd [2002] NSWSC 432; 55 NSWLR 1
- Sciacca v Langshaw Valuations Pty Ltd [2013] NSWSC 1285
Category: Procedural and other rulings
Parties: Frank Sciacca (First Plaintiff)
Maura Spresian (Second Plaintiff)
Rosie Iannelli (Third Plaintiff)
Vero Insurance Ltd (Third Defendant)
Representation: Counsel: HWM Stitt (Plaintiffs)
DA Lloyd (Third Defendant)
Solicitors: WKA Legal (Plaintiffs)
Kennedys Lawyers (Third Defendant)

File Number(s): 2011/90522
Publication restriction: Nil

Judgment

Introduction

On 10 September 2013 I published my reasons for refusing the third defendant's (Vero) application for summary dismissal: Sciacca v Langshaw Valuations Pty Ltd [2013] NSWSC 1285.

On 4 October 2013 I heard argument on the costs of the motion filed on 20 August 2012 (the motion) and the amended motion filed on 12 July 2013 (the amended motion). The plaintiffs sought an order that Vero pay their costs of the motion and amended motion forthwith. Vero contended that the appropriate costs orders were that there be no order as to costs of the motion or amended motion until 12 July 2013 and that Vero pay the plaintiffs' costs of the amended motion on and from 12 July 2013.

Relevant background to the motion and amended motion

The procedural chronology in this matter is lengthy. However, I do not consider it necessary to chronicle the various directions hearings and orders made, beyond that which is set out below, to dispose of the costs applications.

By notice to admit facts dated 17 July 2012 and served on that day, Vero sought from the plaintiffs admissions that by letter dated 21 April 2011 the plaintiffs first made a claim against the seventh defendant, Michelle Fleming, the principal of the insured, Integrity Mortgage Professionals Pty Limited (IMP) and a claim against IMP itself. Vero annexed to the notice to admit facts the copy of the letter in which the claim was alleged to have been made. The plaintiffs' solicitors wrote the letter of claim dated 21 April 2011. By letter dated 31 July 2012 the plaintiffs' solicitors wrote to Vero's solicitors saying that they could not make the admission since the plaintiffs had other solicitors acting for them at an earlier time and they had not obtained a response from them. Nor had they been able to obtain instructions from the third plaintiff who was then overseas. There does not appear to…

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.

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Details

Case: [2013] NSWSC 1476
Decision Date: 08 October 2013

CaseChat Overview and Summary

In this matter, Sciacca sought costs against Langshaw Valuations Pty Ltd in the Supreme Court of New South Wales. The nature of the dispute involved an application for costs following a settlement of the underlying proceedings. The primary focus was on whether the unsuccessful party's conduct warranted an order for costs to be paid forthwith. The court was required to assess the reasonableness of the unsuccessful party's conduct throughout the litigation process.

The court examined whether the conduct of Langshaw Valuations Pty Ltd was unreasonable, particularly in light of the settlement and the application for costs. It considered the procedural steps taken by both parties and the overall conduct of the litigation. The primary issue was whether the unsuccessful party's conduct was so unreasonable as to justify an order for costs to be paid forthwith, which is a high threshold to meet.

In determining the matter, the court held that the conduct of Langshaw Valuations Pty Ltd was not unreasonable. The court found that the party had acted in good faith and that the application for costs forthwith was not warranted. The court emphasised the importance of considering the conduct in the context of the entire litigation process, including the settlement negotiations. Consequently, the application for costs forthwith was dismissed.

No further orders were made by the court. The decision underscored the importance of evaluating the overall conduct of parties in litigation and the high threshold required to justify an order for costs to be paid forthwith.

Orders