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Sheahan v Londish

Sheahan v Londish

Case [2010] NSWCA 364 17 December 2010

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NEW SOUTH WALES COURT OF APPEAL

CITATION:
Sheahan v Londish [2010] NSWCA 364

FILE NUMBER(S):
2010/3807

HEARING DATE(S):
on the papers

JUDGMENT DATE:
17 December 2010

PARTIES:
John SHEAHAN (first appellant)
Ian LOCK (second appellant)
Peter LONDISH (first respondent)
David BOWMAN (second respondent)
Sidney LONDISH (third respondent)

JUDGMENT OF:
Hodgson JA Young JA Lindgren AJA

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable

COUNSEL:
D R SULAN (applicants/appellants)
C J BEVAN (first respondent)
P C EVANS (solicitor) (second and third respondents)

SOLICITORS:
O’Neill Partners (applicants/appellants)
Hartmann & Associates (first respondent)
Philip Evans & Associates (second and third respondents)

CATCHWORDS:
PROCEDURE – Costs – Application for leave to appeal – Events subsequent to first instance decision mean that appeal in substance concerned costs – Offer by applicants to the effect that each party be left bearing its own costs – Not accepted by respondents – Application and appeal successful – Appropriate orders as to costs.

LEGISLATION CITED:
Corporations Act 2001 (Cth), s 249B, s 447A, s 1322(4)(a)

CATEGORY:
Consequential orders

CASES CITED:
Bovis Lend Lease v Wily [2003] NSWSC 884; (2003) 47 ACSR 351
Deputy Commissioner of Taxation v Portinex Pty Ltd (2000) 34 ACSR 422
Elderslie Finance Corporation Ltd v Australian Securities Commission (1993) 11 ACSR 157
Londish v Sheahan [2010] NSWSC 337
Sheahan v Londish [2010] NSWCA 270

TEXTS CITED:

DECISION:

Order that the first respondent, Peter Londish, pay the costs of the applicants/appellants, John Sheahan and Ian Lock, of the application for leave to appeal and of the appeal, and that he have a certificate under the Suitors’ Fund Act 1951 if otherwise eligible.
On the motion brought by notice of motion filed on 11 November 2010:
(a) order by consent that the motion be dismissed;
(b) order that the first respondent/applicant on the motion (Peter Londish) pay the costs of the appellants/first respondents to the motion (John Edward Sheahan and Ian Russell Lock) and of the second and third respondents/second and third respondents to the motion (David Bowman and Sidney Londish) of the motion.
Order that the first respondent, Peter Londish, pay the costs of the applicants/appellants, John Sheahan and Ian Lock, of the interlocutory proceeding at first instance.
[The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

JUDGMENT:

- 8 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 2010/3807
HODGSON JA
YOUNG JA
LINDGREN AJA
17 DECEMBER 2010

SHEAHAN v LONDISH

Judgment

THE COURT: On 21 October 2010 the Court gave judgment on the application for leave to appeal and appeal: see Sheahan v Londish [2010] NSWCA 270. The Court reserved…

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 Sheahan v Londish

Details

AGLC: Sheahan v Londish [2010] NSWCA 364
Case: [2010] NSWCA 364
Decision Date: 17 December 2010

CaseChat Overview and Summary

The applicants, Sheahan and others, sought leave to appeal to the Court of Appeal of New South Wales against orders made by the primary judge concerning costs. The substantive dispute between the parties had been resolved by events occurring after the first instance decision, meaning the appeal effectively concerned only the allocation of costs. Prior to the hearing of the application for leave to appeal, the applicants made an offer that each party bear its own costs. This offer was not accepted by the respondents.

The central legal issue before the Court of Appeal was the appropriate order for costs, given that the appeal was successful and the substantive dispute had been resolved. The court was required to consider the impact of the applicants' offer to settle costs on a "each side to bear their own costs" basis, and whether this offer, in light of the subsequent success of the appeal, warranted a departure from the usual order that costs follow the event.

The Court of Appeal reasoned that the applicants' offer to bear their own costs was a significant factor. Although the appeal was successful, the offer demonstrated a willingness to compromise on the costs issue. In light of the offer not being accepted and the subsequent success of the appeal, the court determined that it was appropriate to make an order reflecting the applicants' offer.

The Court of Appeal ordered that each party bear its own costs of the application for leave to appeal and the appeal.

Orders