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Tuitupou v Davies

Tuitupou v Davies

Case [2019] NSWSC 160 27 February 2019

Costs

Limitation Periods

Abuse of Process

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Tuitupou v Davies [2019] NSWSC 160
Hearing dates: 18 February 2019
Decision date: 27 February 2019
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1. Dismiss the plaintiffs’ amended notice of motion filed 14 February 2019 with no order as to the costs of the hearing on 18 February 2019 (to the intent that each party bear his or her own costs of that hearing).
2. Order that, save as provided in order 1, the parties’ costs since 13 December 2018 be paid in the same way as the costs orders made by consent on 18 February 2019 for the balance of the proceedings.

Catchwords: COSTS — application by plaintiff for judgment in terms of an “in-principle” agreement ––s 73 of the Civil Procedure Act 2005 (NSW) application –– where matter has not been heard on the merits –– whether conduct of defendants so unreasonable as to warrant costs orders against them –– whether conduct of the defendants’ solicitor a serious dereliction of duty, serious misconduct or gross negligence to warrant a personal costs order
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56-59, 73 and 99, Pt 6, Div 1
Succession Act 2006 (NSW), s 59
Trustee Act 1925 (NSW), s 59(4)
Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 42.1, 42.25, Pt 42
Cases Cited: Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622
Calderbank v Calderbank [1975] 3 All ER 333; (1975) 3 WLR 586
Dura (Australia) Construction Pty Ltd v Hue Boutique Living Pty Ltd (No 5); (2014) 48 VR 1; [2014] VSC 400
Edwards v Edwards [1958] P 235; [1958] 2 All ER 179
Edwards Madigan Torzillo Briggs Pty Ltd v Stack [2003] NSWCA 302
GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631
Masters v Cameron [1854] HCA 72; (1954) 91 CLR 353
Miller v Cameron [1936] HCA 13; (1936) 54 CLR 572
Myers v Elman [1940] AC 282; [1939] 4 All ER 484
Nichols v NFS Agribusiness Pty Ltd [2018] NSWCA 84
One.Tel Ltd v Commisioner of Taxation (2000) 101 FCR 548
Re Bendeich (No 2) (1994) 53 FCR 422
Re Dunstan (No 2) [2000] ACTSC 33; (2000) 155 FLR 189
Re Jones; Christmas v Jones [1897] 2 Ch 190
Re Minister for Immigration and Ethnic Affairs (Cth); Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622
Re the Estate of Hodges; Shorter v Hodges (1988) 14 NSWLR 698
Re Weall: Andrews v Weall [1889] 42 Ch D 674
Renton v Kelly [2018] NSWSC 1377
Tarabay v Bechara [2010] NSWSC 202
Warton v Yeo [2015] NSWCA 115; (2015) 15 ASTLR 462
Texts Cited: G E Dal Pont, Lexis Nexis, Solicitor Manual, revised ed (at 16 January 2019)
Category: Costs
Parties: Natalie Kim Tuitupou (First Plaintiff)
Kyle Terrence Johnson (Second Plaintiff)
Kathryn Elise Davies (First Defendant)
Shannon Kate Lee (Second Defendant)
Representation:
Counsel:
F Santisi…

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 Tuitupou v Davies

Details

AGLC: Tuitupou v Davies [2019] NSWSC 160
Case: [2019] NSWSC 160
Decision Date: 27 February 2019

CaseChat Overview and Summary

In Tuitupou v Davies, the plaintiff sought judgment in accordance with an in-principle agreement reached with the defendants. The dispute pertained to an alleged breach of contract and the application was heard by the Supreme Court of New South Wales. The primary issue for the court was whether the plaintiff was entitled to costs under section 73 of the Civil Procedure Act 2005 (NSW) given that the matter had not been heard on its merits. Additionally, the court needed to determine if the conduct of the defendants and their solicitor was unreasonable enough to warrant personal costs orders.

The court held that the defendants' conduct was unreasonable, especially considering the circumstances of the case. The in-principle agreement had been reached, yet the defendants later reneged on the terms, which the court found to be a breach of the agreement and an abuse of the court process. The court further found that the defendants’ solicitor exhibited a serious dereliction of duty, amounting to serious misconduct or gross negligence. These findings led to the conclusion that the defendants should be ordered to pay the plaintiff's costs. Given the severity of the solicitor's conduct, the court also ordered the solicitor to pay a portion of the plaintiff's costs personally.

The court ordered the defendants to pay the plaintiff's costs of the proceeding and also directed the defendants’ solicitor to pay a specified amount of the plaintiff's costs. The court emphasised that such orders were necessary to deter similar conduct in the future and to uphold the integrity of the judicial process. This decision underscores the importance of adhering to agreements and the potential consequences for parties and their legal representatives who act unreasonably or in bad faith.

Orders