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Turner v O'Bryan-Turner (No 2)

Turner v O'Bryan-Turner (No 2)

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Case Copied 18 February 2021 58 min read

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Supreme Court

New South Wales

Medium Neutral Citation: Turner v O’Bryan-Turner (No 2) [2021] NSWSC 101
Hearing dates: On the papers
Date of orders: 18 February 2021
Decision date: 18 February 2021
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
(1)   As to the costs of the 2017 Proceeding:
(i)   save as to the costs of the cross-claim filed 31 May 2017 by Wendy purportedly as tutor for John, which are the subject of (iii) below, order that Wendy’s estate pay 20% of the Nick interests’ costs of the 2017 Proceeding so far as those costs were identifiably referable to the claims brought against Wendy;
(ii) again, save as to the costs of the cross-claim filed 31 May 2017 by Wendy purportedly as tutor for John, which are the subject of (iii) below, order that Nick, as tutor for John, pay David and Karl’s costs of the 2017 Proceeding and that Allawah pay the costs of the abandoned s 37A Conveyancing Act claim brought by it;
(iii)   order that the costs of the cross-claim filed on 31 May 2017 by Wendy in the 2017 Proceeding be costs for which the Nick interests should be liable vis a vis David and Karl but that, as between Wendy and the Nick interests, each should bear her, his or its own costs of that cross-claim.
(2)   As to the costs of the 2019 Proceeding, order that the Nick interests pay the plaintiff (Angelena)’s costs, as tutor for John, on the ordinary basis.
(3)   List the matter for directions at 8.30am on 3 March 2021 as to the application by the David/Karl interests for discharge or variation of the interlocutory regime put in place by Sackar J in these proceedings and direct the Nick interests to file any brief written submissions on that issue by 4pm on 24 February 2021.
(4)   Confirm that the time for written submissions in relation to the terms of the charge to be imposed in accordance with my principal reasons was extended to 30 April 2021, with liberty to apply to restore the matter for directions at an earlier time on 48 hours’ notice.
(5)   Confirm that leave was given, to the extent that such leave be necessary, for the David/Karl interests to disclose to NAB for the purposes of the forthcoming Farm Debt mediation the Opteon Valuation Report that was tendered in evidence in these proceedings.
(6)   Otherwise, stand the matter over for final directions on 4 May 2021.

Catchwords:
COSTS – Party/Party – Bases of quantification – Indemnity basis – Exceptions to general rule that costs follow the event – Calderbank offers – Orders when proceedings involve multiple parties – Sanderson orders
CIVIL PROCEDURE – Implied undertakings – Documents to which applies

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 98
Competition and Consumer Act 2010 (Cth), Sch 2 –Australian Consumer Law
Conveyancing Act 1919 (NSW), s 37A
Farm Debt Mediation Act 1994 (NSW)
Powers of Attorney Act 2003 (NSW), s 36
Practice Note SC Gen 2

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: [2021] NSWSC 101
Decision Date: 18 February 2021

CaseChat Overview and Summary

In Turner v O'Bryan-Turner (No 2), the dispute involved multiple parties with complex interrelations, leading to an intricate legal battle. The court was tasked with determining the appropriate basis for quantifying costs between the parties, with a focus on whether the indemnity basis should apply and whether there were exceptions to the general rule that costs follow the event. The proceedings involved a series of offers under the Calderbank protocol, which required the court to consider the implications of these offers on the cost awards. The case also examined the principles of implied undertakings and the documents to which they applied, further complicating the allocation of costs.

The primary legal issues centred on the principles governing the quantification of costs in party/party cases, particularly whether the indemnity basis of costs should apply and if there were any exceptions to the general rule. The court needed to consider the impact of Calderbank offers on the quantification of costs, as well as the applicability of implied undertakings to the documents involved in the proceedings. The case raised questions about the appropriate orders to make in complex cases involving multiple parties and the extent to which the court should consider the conduct of the parties in determining costs.

The court, in its detailed judgment, examined the principles of indemnity costs and the circumstances under which exceptions to the general rule may apply. It found that the Calderbank offers made by the parties provided a basis for considering alternative cost orders, which deviated from the traditional indemnity basis. The court also held that there were implied undertakings in the documents that influenced the outcome of the proceedings. Ultimately, the court ordered that the costs be quantified on a basis that reflected the conduct of the parties and the outcomes achieved, rather than strictly adhering to the indemnity principle. The court's decision highlighted the need for flexibility in cost orders, especially in complex cases with multiple parties.

In conclusion, the court made orders reflecting a nuanced approach to cost quantification, taking into account the Calderbank offers and the implied undertakings in the documents. The final orders directed the parties to pay costs on a basis that recognised the contributions and outcomes of each party, deviating from the strict indemnity basis where appropriate. The court's decision underscored the importance of considering the conduct of the parties and the specific circumstances of each case when determining cost orders.

Orders