Telfer v Fairfax (No 2) - [2016] NSWSC 639

Supreme Court

New South Wales

Medium Neutral Citation: Telfer v Fairfax (No 2) [2016] NSWSC 639
Hearing dates: On the papers
Date of orders: 18 May 2016
Decision date: 18 May 2016
Jurisdiction: Equity
Before: Robb J
Decision:
See par 59

Catchwords:
COST ORDERS – issues in the plaintiff’s statement of claim contested between the plaintiff and the second defendant – first defendant administrator filed submitting appearance – plaintiff succeeded on most claims in the statement of claim, but failed on others – plaintiff relied upon offer of compromise – HELD offer of compromise ineffective because it did not involve any real element of compromise – plaintiff entitled to her costs on the ordinary basis in respect of the claims in the statement of claim on which she succeeded
COST ORDERS – second defendant/cross claimant succeeded on his cross claim and some claims in the statement of claim – HELD second defendant/cross claimant entitled to his costs from the plaintiff/cross defendant on the ordinary basis in respect of the claims in the cross claim and the claims in the statement of claim on which he succeeded
Legislation Cited: Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Leichhardt Municipal Council v Green [2004] NSWCA 341
Texts Cited: Ritchie’s Uniform Civil Procedure NSW
Category: Costs
Parties: Carolyn Telfer (plaintiff)
Kenneth John Fairfax in his capacity as administrator of the estate of Lyall Telfer (first defendant)
Mark Andrew Telfer (second defendant)
Representation:
Counsel: A G Martin (plaintiff)
M Rollinson (second defendant)
Solicitors: Whitehead Cooper Williams (plaintiff)
Fairfax Lawyers (first defendant)
Mark Rahme (second defendant)

File Number(s): 2014/370020
Publication restriction: None

Judgment

I published my reasons for judgment in this matter on 12 February 2016.
I invited the parties to bring in short minutes of order to reflect the conclusions that I reached in my judgment.
On 17 February 2016 I made the following orders in the proceedings:

The Court
1.    Declares that the first defendant, in his capacity as administrator of the estate of the late Lyall Telfer, is indebted to the plaintiff pursuant to the deed dated 26 July 2010 between the plaintiff and the late Lyall Telfer (the Deed) in the amount of $475,947.33 as at 12 December 2012.
2.   Declares that the first defendant, in his capacity as administrator of the estate of the late Lyall Telfer, is liable to pay to the plaintiff compensation for the failure of the estate of the late Lyall Telfer to pay the debt of $475,947.33 referred to in order 1 on 12 December 2012, in the amount of $103,800.
3.   Orders the first defendant, in his capacity as administrator of the estate of the late Lyall Telfer, to pay to the plaintiff the sum of $579,747.33 (the Debt).
4.   Orders that the execution by the plaintiff of order 3 be stayed pending further order of the court (with the intent that there will be no execution on the order if the plaintiff receives the amount of $579,747.33 referred…

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 Telfer v Fairfax (No 2)

Details

AGLC: Telfer v Fairfax (No 2) [2016] NSWSC 639
Case: [2016] NSWSC 639
Decision Date: 18 May 2016

CaseChat Overview and Summary

In the case of Telfer v Fairfax (No 2), the plaintiff, Telfer, was involved in a legal dispute with the first defendant, Fairfax, and the second defendant, who was also a cross-claimant, also Fairfax. The case revolved around various issues, including those related to a statement of claim, an offer of compromise, and costs. The case was heard in the Federal Circuit Court of Australia.

The primary legal issues that the court had to address were whether the offer of compromise made by the plaintiff was valid and, if so, whether it entitled the plaintiff to costs on an indemnity basis. The court also had to decide the costs to be awarded to the parties in light of their respective successes and failures on their claims and cross-claims.

In its decision, the court found that the offer of compromise made by the plaintiff was ineffective as it did not involve any real element of compromise. Therefore, the plaintiff was not entitled to costs on an indemnity basis. Instead, the court held that the plaintiff was entitled to her costs on the ordinary basis in respect of the claims in the statement of claim on which she succeeded. The second defendant/cross claimant was successful on his cross claim and some claims in the statement of claim, and was thus entitled to his costs from the plaintiff/cross defendant on the ordinary basis in respect of the claims in the cross claim and the claims in the statement of claim on which he succeeded.

The final orders of the court reflected the decision on costs, with the plaintiff receiving her costs on the ordinary basis for the claims she succeeded on, and the second defendant/cross claimant receiving his costs on the ordinary basis for the claims and cross-claim on which he was successful.

Orders