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Smith v Jones (No. 4)

Smith v Jones (No. 4)

Case [2022] NSWSC 1715 14 December 2022

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Smith v Jones (No. 4) [2022] NSWSC 1715
Hearing dates: 16 September 2022 and further written submissions up to 27 September 2022
Date of orders: 14 December 2022
Decision date: 14 December 2022
Jurisdiction: Common Law
Before: Lonergan J
Decision:
Further to order 2 made in the proceedings on 9 September 2022, the plaintiff to pay the defendant’s costs of the proceedings on an indemnity basis on and from 9 July 2021.

Catchwords:
CIVIL PROCEDURE – costs sought on an indemnity basis – Civil Procedure Act 2005 (NSW), s 98 – three Calderbank letters forwarded at different stages of the proceedings – whether it was unreasonable for the plaintiff to fail to accept the offers – where plaintiff’s claim summarily dismissed due to being statute-barred – where the first offer was made three weeks after commencement of the proceedings – whether second offer was a compromise and/or provided adequate time for acceptance – fact that defendant indicated preparedness to bear own costs at early stage despite significant costs incurred by the time of the third letter – indemnity costs of the proceedings to be paid by the plaintiff from the date of the first offer

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Family Law Act 1975 (NSW) (Cth)
Limitation Act 1969 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Calderbank v Calderbank [1975] 3 All ER 333
Commonwealth of Australia v Gretton [2008] NSWCA 117
County Securities Pty Limited v Challenger Group Holdings Pty Limited (No 2) [2008] NSWCA 273
Evans Shire Council v Richardson (No 2) [2006] NSWCA 61
Hancock v Arnold; Dodd v Arnold (No. 2) [2009] NSWCA 19
Hunter v Roberts (No 2) [2019] NSWCA 235
Oshlack v Richmond River Council (1988) 193 CLR 72; [1998] HCA 11
Penrith Rugby League Club Ltd Trading as Cardiff Panthers v Elliot (No 2) [2009] NSWCA 356
SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323
Smith v Jones [2022] NSWSC 1191
Smith v Jones (No. 2) [2022] NSWSC 1321
Smith v Jones (No. 3) [2022] NSWSC 1448

Category: Procedural rulings
Parties: Helen Smith (Plaintiff)
Stephen Jones (Defendant)
Representation:
Counsel:
K Balendra (Plaintiff)
E Anderson (Defendant)
Solicitors:
Melinda Griffith Lawyers (Plaintiff)
Wyatts Lawyers and Advisors (Defendant)

File Number(s): 2021/00176194
Publication restriction: These proceedings referred in detail to aspects of proceedings between the parties under the Family Law Act 1975 (Cth). It is an offence contrary to s 121 of that Act to publish information that identifies persons in connection with such proceedings. In order to maintain the efficacy of that protection, pseudonym orders have been made in these proceedings to prohibit the identification of the person concerned in the Family Law proceedings. Those orders were made on 24 October 2022.

Choose an item.

Judgment

On 9 September 2022, I delivered a judgment which, amongst other things, ordered that the proceedings be dismissed with costs: Smith v Jones [2022] NSWSC 1191.
The basis of the dismissal was…

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 Smith v Jones (No. 4)

Details

AGLC: Smith v Jones (No. 4) [2022] NSWSC 1715
Case: [2022] NSWSC 1715
Decision Date: 14 December 2022

CaseChat Overview and Summary

The matter of Smith v Jones involved a dispute where the plaintiff sought to recover costs on an indemnity basis. The case was heard in the Supreme Court of New South Wales. The plaintiff's claim was dismissed due to being statute-barred, and the defendant sought indemnity costs from the date of the first offer, pursuant to section 98 of the Civil Procedure Act 2005 (NSW). The plaintiff had forwarded three Calderbank letters at various stages of the proceedings, and the defendant argued it was unreasonable for the plaintiff to fail to accept these offers.

The court needed to decide whether it was unreasonable for the plaintiff to reject the offers contained in the Calderbank letters. The first offer was made just three weeks after the commencement of the proceedings. The second offer was made later and the court had to determine if it constituted a compromise or provided adequate time for acceptance. Additionally, the fact that the defendant indicated a willingness to bear their own costs early in the proceedings, despite significant costs incurred by the time of the third letter, needed to be considered in determining the reasonableness of the plaintiff's actions.

The court found that the plaintiff's failure to accept the offers was unreasonable, particularly given the early stage at which the defendant indicated their willingness to bear their own costs. The court held that the plaintiff should have accepted the offers, and as a result, the plaintiff was ordered to pay the defendant's indemnity costs from the date of the first offer. This decision highlighted the importance of considering Calderbank offers at an early stage and the consequences of rejecting such offers without good reason.

The court's final order was that the plaintiff was to pay the defendant's indemnity costs of the proceedings from the date of the first Calderbank offer. This outcome underscored the significance of assessing the reasonableness of the plaintiff's conduct in relation to the acceptance of offers and the implications for costs recovery.

Orders