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Scott v Ennis-Oakes (No 2)

Scott v Ennis-Oakes (No 2)

Case [2019] NSWSC 1647 26 November 2019

Costs

Limitation Periods

Abuse of Process

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Scott v Ennis-Oakes (No 2) [2019] NSWSC 1647
Hearing dates: On the papers
Date of orders: 26 November 2019
Decision date: 26 November 2019
Jurisdiction: Equity
Before: Darke J
Decision:
Order that each party pay their own costs of the proceedings up to and including 15 February 2018. Order that the plaintiffs pay the defendant’s costs of the proceedings (from 16 February 2018) on the ordinary basis up to and including 24 April 2019 and on an indemnity basis thereafter, save in respect of the plaintiffs’ application for costs.

Catchwords:
COSTS – departure from the usual rule – application by plaintiffs to vary costs order – where plaintiffs commenced proceedings for specific performance of a contract for sale of land – where plaintiffs later amended claim to seek loss of bargain damages instead – where the plaintiffs were unsuccessful in obtaining relief – whether defendant should pay the plaintiffs’ costs for part of the proceedings – plaintiffs held to have been justified in commencing and maintaining proceedings for a period – order that each party pay their own costs in respect of that period
COSTS – departure from the general rule – offers of compromise – Calderbank letters – application by defendant for indemnity costs – defendant made offer of compromise and Calderbank letter in similar terms – neither offer accepted by the plaintiffs – defendant obtains judgment more favourable than offers – whether offers constituted genuine compromises – whether it was reasonable to not accept either offer – offers held to be genuine compromises – indemnity costs ordered
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 1.11, 20.26, 36.16, 42.15A
Cases Cited: Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd (No 2) [2009] NSWCA 12
Calderbank v Calderbank [1976] Fam 93
Commonwealth of Australia v Gretton [2008] NSWCA 117
Fabre v Lui (No 2) [2015] NSWCA 312
GR Vaughan (Holdings) Pty Ltd v Vogt [2006] NSWCA 263
Herning v GWS Machinery Pty Ltd [No 2] [2005] NSWCA 375
Howard v Pickford Tool Co Ltd [1951] 1 KB 417
King Network Group Pty Ltd v Club of the Clubs Pty Ltd (No 2) [2009] NSWCA 204
Knight v Clifton [1971] Ch 700
Mega-top Cargo Pty Ltd v Moneytech Services Pty Ltd [2016] NSWCA 3
Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344
Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681; [2018] NSWCA 84
Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622
Scott v Ennis-Oakes [2019] NSWSC 1257
Toyota Finance Australia Ltd v Gardiner (No 2) [2016] NSWCA 181
Category: Costs
Parties: Kylie Anne Scott (First Plaintiff)
Bradley John Scott (Second Plaintiff)
Nicole Rae Ennis-Oakes (Defendant)
Representation:
Counsel:
Mr A D Crossland (Plaintiffs)
Mr J C Kelly SC with Mr M F Newton (Defendant)
Solicitors:
Gavin Parsons & Associates (Plaintiffs)
Dentons Lawyers (Defendant)

File Number(s): 2017/232666
Publication restriction: Nil

Judgment

On 23 September 2019, the Court…

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 Scott v Ennis-Oakes (No 2)

Details

AGLC: Scott v Ennis-Oakes (No 2) [2019] NSWSC 1647
Case: [2019] NSWSC 1647
Decision Date: 26 November 2019

CaseChat Overview and Summary

In the case of Scott v Ennis-Oakes (No 2), the plaintiffs, Scott, sought to enforce a contract for the sale of land against the defendant, Ennis-Oakes. The plaintiffs initially pursued specific performance of the contract but later amended their claim to seek loss of bargain damages. The court found against the plaintiffs and denied their claims. Following the judgment, the plaintiffs sought to vary the costs order to have the defendant pay for part of their costs, arguing that they were justified in commencing and maintaining the proceedings for a certain period. The defendant, on the other hand, applied for indemnity costs based on offers of compromise made through Calderbank letters, which were not accepted by the plaintiffs. The court found that the plaintiffs were justified in bringing the proceedings for a time and that the defendant's offers were genuine compromises. The court ordered that each party pay their own costs for that period and granted the defendant indemnity costs.

The legal issues before the court were whether the plaintiffs were justified in commencing and maintaining the proceedings for a period, warranting a departure from the usual rule on costs, and whether the defendant's offers of compromise constituted genuine compromises. The court considered the nature of the claims, the conduct of the parties, and the outcome of the proceedings. In addressing the first issue, the court found that the plaintiffs had a reasonable basis for bringing the proceedings initially and for continuing them until the amendment to seek loss of bargain damages. Regarding the second issue, the court examined the terms of the defendant's offers and the circumstances surrounding them. The court determined that the offers were genuine and that it was reasonable for the plaintiffs not to accept them given their potential to achieve a better outcome in court.

The court's reasoning was grounded in the principles of costs in Australian litigation, particularly the factors that justify a departure from the usual rule that the losing party pays the winning party's costs. The court considered the justification for the plaintiffs' initial claims and the reasonableness of their decision to amend their claim to seek damages. The court also evaluated the genuineness of the defendant's offers of compromise and the plaintiffs' decision not to accept them. The court found that the plaintiffs were justified in bringing the proceedings and that the defendant's offers were genuine compromises. Consequently, the court ordered that each party bear their own costs for the period in question and granted the defendant indemnity costs for the entire proceedings.

Orders