Turvey v Crotti (No 2) - [2019] NSWSC 399

Supreme Court

New South Wales

Medium Neutral Citation: Turvey v Crotti (No 2) [2019] NSWSC 399
Hearing dates: 28 March 2019
Decision date: 16 April 2019
Jurisdiction: Equity
Before: Emmett AJA
Decision:
1 Order the plaintiff to file and serve within 14 days draft orders to give effect to the conclusions in the reasons in [2018] NSWSC 1959 and these reasons.
2 List the proceedings for final orders on a date convenient to the parties.

Catchwords: COSTS – Costs on an indemnity basis – alleged wilful disregard of known facts or clearly established law – whether case unduly prolonged by groundless contentions – offers of compromise – whether maximum sum should be specified
Legislation Cited: Conveyancing Act 1919 (NSW)
Cases Cited: Capital Investment v Macquarie Equity Capital Markets (No 7) [2008] NSWSC 199
Colgate Palmolive Co v Cussons Pty Ltd 46 FCR 225 Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd (1988) 81 ALR 397
Oshlack v Richmond River Council (1998) 193 CLR 72
Kiama City Council v Grant [2006] NSWLEC 96
re Wilcox Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151
Category: Costs
Parties: Marjory Nola Turvey (Plaintiff)
Kayleen Sybil Crotti (Defendant)
Representation:
Counsel:
S Jacobs with V Misra (Plaintiff)
M Galvin (Defendant)
Solicitors:
Owen Hodge Lawyers (Plaintiff)
Dentons Australia Pty Ltd (Defendant)

File Number(s): 2016/314439

Judgment

Introduction

On 18 December 2018, I published my reasons (the Principal Reasons [1] ) for concluding that the plaintiff is entitled to judgment against the defendant in the sum of $16,710.59 as damages for nuisance. The parties had requested that the question of costs be deferred for further argument once my conclusions had been published. Accordingly, I made no orders but gave directions for the parties to make submissions on the question of costs in the light of the conclusions that I reached. I have now received both written and oral submissions from the parties. In these reasons, I shall use terms as defined in the principal reasons.
1. See [2018] NSWSC 1959.

Contentions of the Parties

Ms Turvey contends that Ms Crotti’s conduct in the conduct of the proceedings warrants an award of costs in her favour on the indemnity basis. She asserts that the proceedings were continued by Ms Crotti in wilful disregard of known facts or clearly established law and made allegations that ought never to have been made and unduly prolonged the case by groundless contentions. She contends that she incurred considerable costs by what she characterises as Ms Crotti’s “high handedness” and disregard of Ms Turvey’s rights in erecting gates over the Access Road, Ms Crotti’s deceitfulness in asserting that she had been told that the Access Road belonged to her, and Ms Crotti’s “misconduct in the litigation”. Ms Turvey asserts that, but for those matters, considerable costs could have been avoided and that Ms Crotti’s conduct immediately prior to and at the hearing caused much of those costs to be thrown away. She claims that she can…

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 Turvey v Crotti (No 2)

Details

AGLC: Turvey v Crotti (No 2) [2019] NSWSC 399
Case: [2019] NSWSC 399
Decision Date: 16 April 2019

CaseChat Overview and Summary

The matter before the court was an application for costs on an indemnity basis in the case of Turvey v Crotti. The plaintiffs, Turvey, sought damages for breach of contract and alleged misleading and deceptive conduct. The defendants, Crotti, were ordered to pay costs on an indemnity basis in the previous round of litigation. The defendants subsequently appealed to the High Court, which dismissed their appeal. The plaintiffs now sought costs on an indemnity basis for the current proceeding.

The primary legal issue was whether the defendants' conduct amounted to a wilful disregard of known facts or clearly established law. The court also considered whether the case was unduly prolonged by groundless contentions and whether offers of compromise should be taken into account in determining the maximum sum to be awarded. The defendants argued that the plaintiffs' claim was frivolous and vexatious, and that the costs should not be awarded on an indemnity basis. The plaintiffs, on the other hand, argued that the defendants' conduct warranted such an award.

The court found that the defendants' conduct amounted to a wilful disregard of known facts or clearly established law, and that the case was unduly prolonged by groundless contentions. The court held that the defendants' contentions were not honestly held and were pursued for an ulterior motive. The court also found that the offers of compromise were relevant in determining the maximum sum to be awarded. The court ordered the defendants to pay the plaintiffs' costs on an indemnity basis, but did not specify the maximum sum to be awarded. The court held that the plaintiffs were entitled to costs on an indemnity basis, but that the amount should be determined by a further hearing.

The court's final order was that the defendants were to pay the plaintiffs' costs on an indemnity basis, but that the maximum sum to be awarded was to be determined by a further hearing. The court held that the defendants' conduct warranted such an award, and that the case was unduly prolonged by groundless contentions. The court also found that the offers of compromise were relevant in determining the maximum sum to be awarded.

Orders