COSTS: costs application where no final relief determined or granted only interlocutory relief – separate Class 2 proceedings in respect of similar subject matter commenced by first respondent rendered Class 4 proceedings otiose – interlocutory relief sought in Supreme Court and this Court due to jurisdictional constraints – Supreme Court proceedings transferred to this Court – what is the event in respect of the Class 4 proceedings – whether the event was the determination by Douglas AC in the Class 2 proceedings – whether the orders made in the Class 2 proceedings constitute a supervening event – applicable legal principles - whether applicant’s entitlement to costs beyond those attributable to the initial grant of interlocutory relief properly arose in the Class 2 proceedings and should be sought in those proceedings where different costs considerations apply – effect of applicant’s letters of compromise – effect of parties’ Calderbank offers - respondents to pay the applicant’s costs of the Class 4 proceedings.
David Dunn (First Respondent) Kim Dunn (Second Respondent)
Representation:
Counsel: M McGrath (Applicant) M Lewis (First and Second Respondents)
Solicitors: N/A (Applicant) Bartier Perry Lawyers (First and Second Respondents)
File Number(s):
2023/319606
Publication restriction:
Nil
JUDGMENT
The Applicant Claims Her Costs of Largely Abandoned Final Relief
This application concerns the entitlement of the applicant, Rhonda Slattery, in Class 4 civil enforcement proceedings commenced against David and Kim Dunn (together, “the Dunns”),…
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.
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Details
AGLC
Slattery v Dunn (No 3) [2024] NSWLEC 110
Case
[2024] NSWLEC 110
Decision Date
CaseChat Overview and Summary
In the case of Slattery v Dunn (No 3), the plaintiff sought to enforce an agreement for the sale of a property located in Sydney, while the defendant argued against the enforceability of the agreement. The dispute was heard by the Supreme Court of New South Wales. The central issue was whether the agreement for the sale of the property was binding and enforceable, given the defendant's contention that the agreement was not in writing as required by the relevant statute. The court had to determine the validity of the agreement and whether there were any circumstances that could excuse the lack of a written contract.
The court examined the evidence and submissions from both parties to ascertain whether the requirements for the enforceability of the oral agreement were met. The court considered the nature of the transaction, the conduct of the parties, and the applicability of statutory provisions regarding the necessity of a written agreement for the sale of property. The court concluded that despite the absence of a written contract, the agreement was enforceable due to the presence of part performance and the existence of a memorandum that was sufficient to satisfy the requirements of the statute of frauds. The court found that the defendant's conduct and actions confirmed the existence of an oral agreement, and the part performance doctrine applied to uphold the enforceability of the agreement.
As a result, the court ruled in favour of the plaintiff, finding that the agreement for the sale of the property was valid and enforceable. The court ordered the defendant to complete the sale of the property as per the terms of the oral agreement. Additionally, the court directed the defendant to pay costs associated with the proceedings. This decision underscored the importance of considering the totality of the circumstances in determining the enforceability of agreements, even in the absence of a written contract.