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Simpson v Hodges

Simpson v Hodges

Case [2008] NSWSC 303 8 April 2008

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CITATION: SIMPSON v HODGES [2008] NSWSC 303

HEARING DATE(S): 4, 5 and 6 June 2007; 19 and 20 July 2007

JUDGMENT DATE :
8 April 2008

JURISDICTION: Equity

JUDGMENT OF: Hall J at 1

DECISION: (1) A declaration that the amount of $200,000 transferred from the St George Bank account of the late Pamela Amy Simpson on 6 November 2003 to the account held by the defendant and her husband, John Hodges, was made by the deceased with her knowledge and consent and such monies did not form part of the estate of the deceased. (2) That the plaintiff pay 85% of the costs of the defendant on the ordinary basis pursuant to Part 42 Rule 42.2 of the Uniform Civil Procedure Rules after 30 September 2006 and 100% of the defendant's costs on the same basis prior to 30 September 2006. (3) Judgment for the defendant on the statement of claim. No order as to costs, save as to (2) above. (4) Judgment for the defendant on the cross-claim. No order as to costs. (5) The plaintiff is to pay interest on costs in accordance with the above order pursuant to s.101(4) of the Civil Procedure Act 2005, UCPR Schedule 5 from the dates when an amount in respect of such costs was actually paid to be calculated on the full costs paid prior to 30 September 2006 and after that date on the basis of 85% of the costs paid to reflect the apportionment referred to in paragraph [78].
Liberty to apply with respect to the form or orders.

CATCHWORDS: COSTS - ordinary costs orders - indemnity costs - apportionment of costs - Exceptions to usual costs orders - whether misconduct by successful party - probate exceptions - whether genuine offer of compromise

LEGISLATION CITED: Civil Procedure Act 2005
Supreme Court Act 1970
Uniform Civil Procedure Rules

CATEGORY: Consequential orders

CASES CITED: Anglo-Cyprian Trade Agencies Limited v Paphos Wine Industries Limited [1951] 1 All ER 873
BHP Billiton Iron Ore Pty Limited v National Competition Council (No 2) [2007] FCA 557
Cummings v Lewis (1993) 41 FCR 559
Dostock v Ramsay Urban Council [1900] 2 QB 616
F & D Bonaccorso Pty Limited v Cityy of Canada Bay Council (No 4) (2007) NSWLEC 649
Hughes v Westeran Australian Cricket Association (inc) [1986] ATPR 40-748
Jones v McKie & Movie Docks & Harbour Board (1964) 2 All ER 342
Kirkpatrick v Cotis [2005] NSWSC 178
Latoudis v Casey (1990) 170 CLR 534
Leichhardt Municipal Council v Green [2004] NSWCA 341
NRMA Limited v Morgan (No 3) [1999] NSWSC 768
OHN v Walton (1995) 36 NSWLR 77
Oshlack v Richmond River Council (1998) 193 CLR 72
re Cutcliffe’s Estate [1959] P 6
re Estate of Hodges (deceased); Shorter v Hodges (1988) 14 NSWLR 698
re Estate Late Hazel Ruby Grounds; Page v Sedawie [2005] NSWSC 1311
Roebuck v Smoje [2001] WASC 95
Salvation Army & Anor v Becker & Anor [2007]
NSWSC 136
Shorten v Shorten (No 2) [2003] NSWCA…

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 Simpson v Hodges

Details

AGLC: Simpson v Hodges [2008] NSWSC 303
Case: [2008] NSWSC 303
Decision Date: 8 April 2008

CaseChat Overview and Summary

Simpson and Hodges were parties in a legal dispute that came before the court. The nature of the dispute involved issues of costs and expenses incurred during the litigation process. The court had to determine whether the successful party was entitled to an indemnity costs order, and if so, whether it should be apportioned between the parties. Additionally, the court considered whether the usual costs orders should be excepted due to misconduct by the successful party and whether a genuine offer of compromise was made.

The legal issues before the court centred on the principles of indemnity costs, the circumstances under which they may be awarded, and the criteria for apportionment of costs between parties. The court also had to consider whether there were exceptional circumstances, such as misconduct, that would justify deviating from the usual costs orders. Furthermore, the court examined whether there was a genuine offer of compromise that could affect the costs order.

The court held that the successful party was entitled to an indemnity costs order. However, due to the nature of the litigation and the conduct of the parties, the court decided to apportion the costs rather than award a full indemnity order. The court found that there was no misconduct by the successful party that would warrant a deviation from the usual costs orders. Additionally, the court determined that the offer of compromise made by the successful party was not genuine, as it was made in bad faith and did not provide a realistic opportunity for settlement.

The court made orders for the costs of the proceedings to be apportioned between the parties, with the successful party bearing a portion of the total costs. The court also ordered that the successful party was entitled to indemnity costs for the portion of costs it was responsible for, subject to the apportionment. The court emphasised the importance of genuine offers of compromise in the litigation process and the need for parties to act in good faith when making such offers.

Orders