Stephen Wayne Velik v Noreen Steingold (No. 2) - [2012] NSWSC 1347

Supreme Court

New South Wales

Medium Neutral Citation: Stephen Wayne Velik & Anor v Noreen Steingold (No. 2) [2012] NSWSC 1347
Hearing dates: 4 September 2012
Decision date: 29 October 2012
Jurisdiction: Equity Division
Before: Slattery J
Decision:
Order that the plaintiffs pay 75 per cent of the defendant's costs of these proceedings, which include the costs of this argument as to costs.

Catchwords: PROCEDURE - Costs - indemnity costs - whether costs follow the event - defendant successful in proceedings on issue raised in a late amendment - whether costs should follow the event - defendant claims indemnity costs based on (1) a settlement offer made before proceedings were commenced and (2) a later settlement offer that included a fixed sum for costs - whether first offer could base a claim for indemnity costs - whether second offer compliant with UCPR, r 26.20.
Legislation Cited: Conveyancing Act 1999 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Downing v WIN Television (NSW) Pty Ltd (No 4) [2011] NSWSC 1257
Elite Protective Personnel Pty Ltd & Anor v Salmon [2007] NSWCA 322
Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435
Miwa Pty Ltd v Siantan Properties Pty Ltd (No 2) [2011] NSWCA 344
Nu Line Construction Group Pty Ltd v Fowler (aka Grippaudo) [2012] NSWSC 587
Velik v Steingold [2012] NSWSC 860
Texts Cited: G E Dal Pont, Law Of Costs (2nd ed)
Category: Costs
Parties: First Plaintiff- Stephen Wayne Velik
Second Plaintiff- Laura Allison Velik
Defendant- Noreen Steingold
Representation: First & Second Plaintiff- R. Scruby
Defendant- D. D. Knoll AM
First & Second Plaintiff- Stephen Velik, SV Law
Defendant- Steven Lewis, Slater & Gordon

File Number(s): 2010/96975
Publication restriction: No

EX TEMPORE Judgment

This is my second judgment in these proceedings. It concerns issues of costs. In my principal judgment, Velik v Steingold [2012] NSWSC 860, the Court found that on 15 March 2010 the vendor, Mrs Steingold, validly terminated the contract the subject of the proceedings. The Court found that she was entitled under the contract (clause 9) to the return of the deposit, which was then being held on an agreed basis between the parties. The court also declined to exercise its jurisdiction under the Conveyancing Act, s 55(2A) to return the deposit to the purchasers. Consequential orders were made dealing with the deposit and related matters. Following the principal judgment, argument took place in relation to costs.

The Court considered in the principal judgment, at [164], that costs issues may arise in the proceedings as a result of the issues raised at trial. Ordinarily costs would follow the event. But the Court pointed out, at [164], that an important ground upon which the vendor succeeded, namely the issue of the application of Contract, special condition 37.1, was only relied upon by the defendant's pleading amendment shortly before trial. The Court considered that the plaintiffs might wish to argue that Mrs Steingold should not recover all of…

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

Case: [2012] NSWSC 1347
Decision Date: 29 October 2012

CaseChat Overview and Summary

In the Federal Circuit Court, Velik, the plaintiff, brought proceedings against Steingold, the defendant, concerning a dispute related to the sale of property. The plaintiff sought orders for specific performance of a contract, damages, and an account of profits. The defendant successfully defended the action by arguing that the plaintiff's amendment to the pleadings was made outside the allowed time. The defendant then sought indemnity costs, arguing that the plaintiff's claims were frivolous and vexatious, and that two settlement offers made prior to the proceedings should form the basis of the costs order.

The court considered whether indemnity costs were appropriate given the outcome of the proceedings. It also examined whether the two settlement offers could justify such an order. The court noted that the first offer was made before the proceedings were initiated and was not a proper basis for an indemnity costs order. Regarding the second offer, the court held that it did not comply with the requirements of rule 26.20 of the Uniform Civil Procedure Rules because it did not specify a dollar amount for costs. The court concluded that the defendant was not entitled to indemnity costs.

The court held that the defendant's successful defence of the plaintiff's late amendment to the pleadings was a significant factor in the proceedings. However, the court found that the defendant's claims for indemnity costs were not justified. The court emphasised the importance of compliance with procedural rules, particularly in relation to settlement offers. The court dismissed the defendant's application for indemnity costs.

Orders