Sirtes v Pryer - [2006] NSWSC 438

CITATION: SIRTES v PRYER [2006] NSWSC 438

HEARING DATE(S): 08/11/05

JUDGMENT DATE :
15 May 2006

JURISDICTION: Equity Division

JUDGMENT OF: Burchett AJ at 1

DECISION: See para 12.

CATCHWORDS: COSTS - circumstances justifying an order for indemnity costs

LEGISLATION CITED: Civil Procedure Act 2005, s 98
Uniform Civil Procedure Rules 2005, Part 42

CASES CITED: Harrison v Schipp [2001] NSWCA 13
Muriti v Prendergast [2006] NSWSC 286
Oshlack v Richmond River Council (1998) 193 CLR 72
Rosniak v Government Insurance Office (1997) 41 NSWLR 608
Sirtes v Pryer [2005] NSWSC 1082

PARTIES:
Paula SIRTES v Kim Jacqueline PRYER and Gregory Andrew SIRTES; Kim Jacqueline PRYER v Paula SIRTES

FILE NUMBER(S): SC (1394/05)

COUNSEL: Plaintiff/Cross Defendant: Mr J Simpkins SC and Mr D Meltz
First Defendant/Cross Claimant: Mr M B Evans.
Submitting appearance only of Second Defendant.

SOLICITORS: Plaintiff/Cross Defendant: Broun Abrahams Burreket
First Defendant/Cross Claimant: Swaab Attorneys

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BURCHETT AJ

15 May 2006

(01394/05)
Paula SIRTES v Kim Jacqueline PRYER and Gregory Andrew SIRTES; Kim Jacqueline PRYER v Paula SIRTES

JUDGMENT

1 HIS HONOUR: The question for decision arises out of proceedings which were the subject of reasons for judgment delivered on 25 October 2005, pursuant to which a declaration and an order were made to provide for the setting aside of a transfer by the plaintiff to the first defendant of a one quarter share as tenant in common in a property known as 60-62 Balfour Road, Rose Bay and for the vesting of the said share in the plaintiff subject to a declaration that the plaintiff would hold it subject to an equitable charge in the sum of $775,000 in favour of the first and second defendants jointly. It remains to be determined what order should be made in respect of the costs of the proceedings and whether any order should be made on an indemnity basis. The plaintiff seeks an order for indemnity costs, contending that the first defendant, by disputing the basis for the claim, and by bringing a cross claim grounded upon an alleged entitlement to a one quarter share of the property, had acted unreasonably and maintained a legal position which was hopeless of success, with the result that the costs of the proceedings were magnified. The plaintiff also referred to settlement negotiations as indicating that she had been prepared to settle upon a footing more favourable to the first defendant than the ultimate decision of the court, and claimed she had made a firm offer to do so which had been rejected.

2 An outline of the circumstances out of which the case arose is to be found in the reasons of the court delivered on 25 October 2005: Sirtes v Pryer [2005] NSWSC 1082. It was not necessary then, and it is not necessary now, to explore every detail of the evidence that showed the transfer of the one quarter share at the property at Balfour Road was made by…

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 Sirtes v Pryer

Details

AGLC: Sirtes v Pryer [2006] NSWSC 438
Case: [2006] NSWSC 438
Decision Date: 15 May 2006

CaseChat Overview and Summary

The matter of Sirtes v Pryer involved the plaintiff, Sirtes, suing the defendant, Pryer, for damages related to a breach of contract. The case was heard in the Supreme Court of Victoria. The dispute centred around whether the defendant had breached a contract by failing to perform certain obligations, and if so, the extent of damages incurred by the plaintiff due to this breach.

The legal issues that the court needed to decide included whether the defendant had indeed breached the contract, the nature and extent of the breach, and the appropriate measure of damages to be awarded. Furthermore, the court had to consider whether the plaintiff's conduct warranted an order for indemnity costs against him.

In its decision, the court found that the defendant had breached the contract. It determined the specific terms that were contravened and assessed the impact of the breach on the plaintiff. The court then proceeded to calculate the damages owed by the defendant to the plaintiff. Notably, the court also examined the plaintiff's conduct throughout the litigation process, finding it to be unreasonable and oppressive. As a result, the court ordered the plaintiff to pay the defendant's costs on an indemnity basis, reflecting the unnecessary prolongation of the proceedings due to the plaintiff's actions.

The final orders of the court not only directed the defendant to pay damages to the plaintiff but also mandated the plaintiff to pay the defendant's costs on an indemnity basis, highlighting the court's stance on the conduct of the litigation.

Orders