Sckaff v Sckaff (No 2) - [2024] NSWCA 225

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Sckaff v Sckaff (No 2) [2024] NSWCA 225
Hearing dates: On the papers
Date of orders: 17 September 2024
Decision date: 17 September 2024
Before: Leeming JA; Mitchelmore JA; Stern JA
Decision:
1.   Declare that the appellants are entitled to possession of the property at [No 6] (the Property).
2.   Order that within 90 days, the respondents give to the appellants vacant possession of the Property in good order and condition.
3.   Order that there be no order as to the costs of the proceedings at first instance, with the intention that the parties bear their own costs.
4.   Order that, subject to order 5 below, the respondents pay the appellants’ costs of the appeal.
5.   Order that the appellants pay 50% of the respondents’ costs of the application for further orders including costs after the Court’s principal judgment was delivered.

Catchwords:
COSTS — appeal allowed on terms — whether plaintiff acted unreasonably in rejecting Calderbank offer — whether partial success of plaintiff warranted favourable costs order — whether successful appellants’ obligation to pay compensation should be stayed pending assessment of costs

Legislation Cited:
District Court Act 1973 (NSW), s 134
Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 42.1, 51.49

Cases Cited:
Ainger v Coffs Harbour City Council (No 2) [2007] NSWCA 212
Bathurst Regional Council as Trustee for the Bathurst City Council Crown Reserves Reserve Trustv Thompson (No 2) [2012] NSWCA 420
Bluth v Boyded Industries Pty Ltd (No 2) [2024] NSWCA 194
Boensch v Bingham [2024] NSWCA 116
C&V Engineering Services Pty Ltd v Metropolitan Demolitions Pty Ltd (No 2) [2023] NSWCA 240
Calderbank v Calderbank [1975] 3 All ER 333
Horseshoe Pastoral Company Pty Ltd v Murray Smith (Trading as South Coast Tile & Slate Company) (Court of Appeal, 7 November 1995, unreported)
Sckaff v Sckaff [2024] NSWCA 207

Category: Costs
Parties: Richard Sckaff (First Appellant)
Nada Sckaff (Second Appellant)
George Sckaff (First Respondent)
Anne Thompson (Second Respondent)
Representation:
Counsel:
J Lazarus SC / J Sukkar (Appellants)
C Wood SC / N Obrart (Respondents)
Solicitors:
Joseph G. Capogreco & Associates (Appellants)
AJB Stevens Lawyers (Respondents)

File Number(s): 2023/459951
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Equity

Citation:

Sckaff v Sckaff [2023] NSWSC 1582

Date of Decision:

15 December 2023

Before:

Robb J

File Number(s):

2018/54674

JUDGMENT

THE COURT: On 19 August 2024, the Court allowed an appeal from a judgment of the Equity Division: Sckaff v Sckaff [2024] NSWCA 207. These reasons assume familiarity with those reasons and adopt the same defined terms, including that “Richard” is, where the context is clear, to be understood as a reference to both appellants, and “George” as a reference to both respondents.
This Court found that Richard paid the purchase price of the Property and had disabused George of his assertion that he was the owner of the Property. The Court set aside the orders made at first instance 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 Sckaff v Sckaff (No 2)

Details

AGLC: Sckaff v Sckaff (No 2) [2024] NSWCA 225
Case: [2024] NSWCA 225
Decision Date: 17 September 2024

CaseChat Overview and Summary

In *Sckaff v Sckaff (No 2)*, the New South Wales Court of Appeal considered an appeal concerning the possession of a property. The dispute involved the appellants, who sought possession, and the respondents, who were in possession. The Court of Appeal was tasked with determining the appropriate orders regarding possession, costs of the proceedings at first instance, and the costs of the appeal itself, including applications made after the principal judgment.

The central legal issues before the Court of Appeal were whether the plaintiff's rejection of a *Calderbank* offer was unreasonable, whether the plaintiff's partial success warranted a favourable costs order at first instance, and whether the successful appellants' obligation to pay compensation should be stayed pending the assessment of costs. The Court also had to determine the allocation of costs for the appeal and subsequent applications.

The Court declared that the appellants were entitled to possession of the property and ordered the respondents to give vacant possession within 90 days. Regarding the costs of the proceedings at first instance, the Court made no order, intending for each party to bear their own costs. For the appeal, the respondents were ordered to pay the appellants' costs, subject to a specific exception. The appellants were ordered to pay 50% of the respondents' costs relating to an application for further orders, including those made after the Court's principal judgment.

Orders

Orders of the court

1. Declare that the appellants are entitled to possession of the property at [No 6] (the Property).

2. Order that within 90 days, the respondents give to the appellants vacant possession of the Property in good order and condition.

3. Order that there be no order as to the costs of the proceedings at first instance, with the intention that the parties bear their own costs.

4. Order that, subject to order 5 below, the respondents pay the appellants’ costs of the appeal.

5. Order that the appellants pay 50% of the respondents’ costs of the application for further orders including costs after the Court’s principal judgment was delivered.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Sckaff v Sckaff (No 2) [2024] NSWCA 225
Hearing dates:	On the papers
Date of orders:	17 September 2024
Decision date:	17 September 2024
Before:	Leeming JA; Mitchelmore JA; Stern JA
Decision:	1. Declare that the appellants are entitled to possession of the property at [No 6] (the Property). 2. Order that within 90 days, the respondents give to the appellants vacant possession of the Property in good order and condition. 3. Order that there be no order as to the costs of the proceedings at first instance, with the intention that the parties bear their own costs. 4. Order that, subject to order 5 below, the respondents pay the appellants’ costs of the appeal. 5. Order that the appellants pay 50% of the respondents’ costs of the application for further orders including costs after the Court’s principal judgment was delivered.
Catchwords:	COSTS — appeal allowed on terms — whether plaintiff acted unreasonably in rejecting Calderbank offer — whether partial success of plaintiff warranted favourable costs order — whether successful appellants’ obligation to pay compensation should be stayed pending assessment of costs
Legislation Cited:	District Court Act 1973 (NSW), s 134 Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 42.1, 51.49
Cases Cited:	Ainger v Coffs Harbour City Council (No 2) [2007] NSWCA 212 Bathurst Regional Council as Trustee for the Bathurst City Council Crown Reserves Reserve Trustv Thompson (No 2) [2012] NSWCA 420 Bluth v Boyded Industries Pty Ltd (No 2) [2024] NSWCA 194 Boensch v Bingham [2024] NSWCA 116 C&V Engineering Services Pty Ltd v Metropolitan Demolitions Pty Ltd (No 2) [2023] NSWCA 240 Calderbank v Calderbank [1975] 3 All ER 333 Horseshoe Pastoral Company Pty Ltd v Murray Smith (Trading as South Coast Tile & Slate Company) (Court of Appeal, 7 November 1995, unreported) Sckaff v Sckaff [2024] NSWCA 207
Category:	Costs
Parties:	Richard Sckaff (First Appellant) Nada Sckaff (Second Appellant) George Sckaff (First Respondent) Anne Thompson (Second Respondent)
Representation:	Counsel: J Lazarus SC / J Sukkar (Appellants) C Wood SC / N Obrart (Respondents) Solicitors: Joseph G. Capogreco & Associates (Appellants) AJB Stevens Lawyers (Respondents)
File Number(s):	2023/459951
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Equity Citation: Sckaff v Sckaff [2023] NSWSC 1582 Date of Decision: 15 December 2023 Before: Robb J File Number(s): 2018/54674