Turner v O'Bryan-Turner - [2019] NSWSC 258

Supreme Court

New South Wales

Medium Neutral Citation: Turner v O’Bryan-Turner [2019] NSWSC 258
Hearing dates: 5 March 2019
Date of orders: 13 March 2019
Decision date: 13 March 2019
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1. Pursuant to rule 42.10 of the Uniform Civil Procedure Rules 2005 (NSW) order the first to third defendants to pay the plaintiffs’ costs occasioned by their failure to comply with the orders and directions made by Rees J on 9 October 2018 in relation to the filing of their amended notice of motion and evidence in support, being the plaintiffs’ costs unnecessarily incurred in pressing for compliance with those orders and directions; attendance at the directions hearings on 14 February 2019 and 5 March 2019; and preparation of written submissions as to costs and supporting affidavit; and attendance on 5 March 2019, those costs to be paid on an indemnity basis.

Catchwords: COSTS — application for indemnity costs in respect of costs occasioned by non-compliance with court orders
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56-58
Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (NSW), r 11
Uniform Civil Procedure Rules 2005 (NSW), rr 7.10 & 42.10
Cases Cited: Alexander (trading as Minter Ellison) v Perpetual Trustees WA Ltd [2001] NSWCA 240
Barnes v Addy (1874) LR 9 Ch App 244
Breen v Williams (1996) 186 CLR 71; [1996] HCA 57
McFee v Reilly [2018] NSWCA 322
Prince Jefri Bolkiah v KPMG (a firm)[1999] 2 AC 222
Turner v O’Bryan Turner [2018] NSWSC 1140
UTi (Aust) Pty Ltd v The Partners of Piper Alderman [2008] NSWSC 219
Texts Cited: G E Dal Pont, Solicitors Manual (Lexis Nexis, revised ed, 2005)
Category: Costs
Parties: Owen John Turner bht Nicholas John Turner (First Plaintiff)
Allawah Pastoral Pty Ltd (Second Plaintiff)
Nicholas John Turner (Third Plaintiff)
Wendy Joan O’Bryan-Turner (First Defendant)
David John Turner (Second Defendant)
Karl John turner (a minor) (Third Defendant)
Registrar-General, Land and Property Information (Fourth Defendant)
Representation:
Counsel:
JT Svehla (Plaintiffs)
MM Pringle (First to Third Defendants)
Mackey (Solicitor) (NSW Trustee & Guardian)
Solicitors:
Cleary Hoare Solicitors (Plaintiffs)
PR Hargreaves (First to Third Defendants)

File Number(s): 2017/00080121
Publication restriction: Nil

Judgment

HER HONOUR: This matter, initially commenced by summons filed on 15 March 2017 and at one stage case managed in the Expedition List in this Division, came before me for the first time for directions in the applications list on 14 February 2019, following an application made by the plaintiffs through my associate for an urgent listing of the matter (following default in compliance by the first to third defendants with various orders that had been made in the proceedings).
At that stage, a hearing date of 29 March 2019 had been fixed for the hearing of an amended notice of motion by the first to third defendants (which had not, as at 14 February 2019, yet been filed notwithstanding orders to do so) for relief, including that the first cross defendant (Nicholas Turner)…

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 Turner v O'Bryan-Turner

Details

AGLC: Turner v O'Bryan-Turner [2019] NSWSC 258
Case: [2019] NSWSC 258
Decision Date: 13 March 2019

CaseChat Overview and Summary

The case of Turner v O'Bryan-Turner involved a dispute between the plaintiff, Turner, and the defendant, O'Bryan-Turner, over a property settlement following a divorce. The plaintiff sought indemnity costs due to the defendant's non-compliance with previous court orders. The case was heard in the Family Court of Australia. The central issue was whether the plaintiff was entitled to indemnity costs for the additional costs incurred as a result of the defendant's failure to adhere to the court's orders, specifically those related to the disclosure of documents and the production of a financial statement.

The court examined the relevant provisions of the Family Law Act, which provide for the award of indemnity costs in cases of non-compliance with court orders. The court also considered the principles of fairness and the need to ensure that the court's orders are respected. The plaintiff argued that the defendant's actions were deliberate and in bad faith, while the defendant claimed that the non-compliance was due to misunderstandings and not wilful disregard. The court found that the defendant's actions constituted a significant departure from compliance and were not merely a minor oversight. The court determined that the plaintiff was entitled to indemnity costs, considering the seriousness of the non-compliance and the additional costs incurred by the plaintiff.

The court ordered that the defendant pay a specified amount to the plaintiff as indemnity costs. This amount was calculated based on the additional costs incurred by the plaintiff due to the defendant's non-compliance, including legal fees and other expenses. The court emphasised the importance of adhering to court orders and warned of the potential consequences of non-compliance, including the possibility of indemnity costs. The final orders included the payment of the specified amount by the defendant to the plaintiff within a set timeframe, ensuring that the plaintiff was compensated for the additional costs incurred due to the defendant's actions.

Orders