Vagg v McPhee - [2012] NSWCA 237

Court of Appeal

New South Wales

Case Title: Vagg v McPhee

Medium Neutral Citation: [2012] NSWCA 237

Hearing Date(s): 30 July 2012

Decision Date: 30 July 2012

Jurisdiction:

Before: McColl JA

Decision:
1. Stay execution on the judgment given pursuant to the orders of the Court below on 7 March 2012, which were:

(1) The plaintiffs pay the defendants' costs of the proceedings on an ordinary basis from March 2009 to 10 October 2011.

(2) The plaintiffs pay the defendants' costs of the proceedings on an indemnity basis after 11 October 2011.

(3) The plaintiffs pay the defendants' costs associated with this motion.

until the appeal in this matter is heard and determined.

2. Stay the costs assessment in respect of the orders made by the Court below on 7 March 2012 until the appeal in this matter is heard and determined.

3. Respondents to pay the appellants' costs of the motion on an indemnity basis.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: PROCEDURE - costs - where applicants sought respondents' consent to orders prior to filing motion - where respondents agreed to orders on morning of hearing - whether costs of motion should be borne on indemnity basis

Legislation Cited: Civil Procedure Act 2005

Cases Cited: Trad v Harbour Radio Pty Limited [2010] NSWCA 41

Texts Cited:

Category: Procedural and other rulings

Parties: Margaret Doreen Vagg - first appellant
Benjamin John Vagg - second appellant
Julia Lillian Vagg - third appellant
Cecilia Anne Vagg - fourth appellant
James Gregory Vagg - fifth appellant
Paul McPhee - first respondent
Trevor Cork - second respondent
David Dunkley - third respondent
Steven Nicholson - fourth respondent

Representation

- Counsel: Counsel:
A P Webb QC with E W Young - appellants
B Slabacu (solicitor) - respondents

- Solicitors: Solicitors:
Turner Freeman - appellants
Colin Biggers & Paisley - respondents

File number(s): 2012/00013018

Decision Under Appeal

- Court / Tribunal:

- Before: Schmidt J

- Date of Decision: 19 December 2011

- Citation: [2011] NSWSC 1584

- Court File Number(s) 2009/29739

Publication Restriction:

JUDGMENT

HER HONOUR: The Court has before it an amended notice of motion seeking three orders. The respondents now consent to orders 1 and 2 in the amended notice of motion. The only extant issue is as to whether the respondents should pay the appellants' costs of the notice of motion which the appellants seek on an indemnity basis.
The original notice of motion was filed on 11 July 2012. It sought an order in identical terms to paragraph 1 of the amended notice of motion and also a costs order. The amendment effected in today's notice of motion…

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 Vagg v McPhee

Details

AGLC: Vagg v McPhee [2012] NSWCA 237
Case: [2012] NSWCA 237
Decision Date: 30 July 2012

CaseChat Overview and Summary

In *Vagg v McPhee*, the appellants sought an order that the respondents pay their costs of a motion on an indemnity basis. The dispute arose from the respondents' agreement to consent orders on the morning of the hearing of the motion, which concerned the basis on which the plaintiffs were to pay the defendants' costs of the proceedings below. The court was the Court of Appeal of New South Wales.

The primary legal issue before the court was whether the costs of the motion should be borne by the respondents on an indemnity basis. This question arose because the respondents had agreed to the substantive orders sought by the appellants in the motion on the morning of the hearing, thereby rendering the motion largely unnecessary.

McColl JA reasoned that the respondents' conduct in agreeing to the orders sought by the appellants on the morning of the hearing, after the appellants had incurred costs in preparing and filing the motion, warranted an order for indemnity costs. The court applied the principle that indemnity costs may be awarded where a party's conduct has been unreasonable or has caused the other party to incur costs unnecessarily. In this instance, the respondents' delay in consenting to the orders, despite the apparent merits of the appellants' position, was considered to have led to the unnecessary expenditure of costs by the appellants.

The court ordered that the respondents pay the appellants' costs of the motion on an indemnity basis. The court also made orders staying execution on the judgment given by the court below and staying the costs assessment in respect of those orders until the appeal was heard and determined.

Orders

Orders of the court

1. Stay execution on the judgment given pursuant to the orders of the Court below on 7 March 2012, which were:

(1) The plaintiffs pay the defendants' costs of the proceedings on an ordinary basis from March 2009 to 10 October 2011.

(2) The plaintiffs pay the defendants' costs of the proceedings on an indemnity basis after 11 October 2011.

(3) The plaintiffs pay the defendants' costs associated with this motion.

until the appeal in this matter is heard and determined.

2. Stay the costs assessment in respect of the orders made by the Court below on 7 March 2012 until the appeal in this matter is heard and determined.

3. Respondents to pay the appellants' costs of the motion on an indemnity basis.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Case Title:	Vagg v McPhee
Medium Neutral Citation:	[2012] NSWCA 237
Hearing Date(s):	30 July 2012
Decision Date:	30 July 2012
Jurisdiction:
Before:	McColl JA
Decision:	1. Stay execution on the judgment given pursuant to the orders of the Court below on 7 March 2012, which were: (1) The plaintiffs pay the defendants' costs of the proceedings on an ordinary basis from March 2009 to 10 October 2011. (2) The plaintiffs pay the defendants' costs of the proceedings on an indemnity basis after 11 October 2011. (3) The plaintiffs pay the defendants' costs associated with this motion. until the appeal in this matter is heard and determined. 2. Stay the costs assessment in respect of the orders made by the Court below on 7 March 2012 until the appeal in this matter is heard and determined. 3. Respondents to pay the appellants' costs of the motion on an indemnity basis. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	PROCEDURE - costs - where applicants sought respondents' consent to orders prior to filing motion - where respondents agreed to orders on morning of hearing - whether costs of motion should be borne on indemnity basis
Legislation Cited:	Civil Procedure Act 2005
Cases Cited:	Trad v Harbour Radio Pty Limited [2010] NSWCA 41
Texts Cited:
Category:	Procedural and other rulings
Parties:	Margaret Doreen Vagg - first appellant Benjamin John Vagg - second appellant Julia Lillian Vagg - third appellant Cecilia Anne Vagg - fourth appellant James Gregory Vagg - fifth appellant Paul McPhee - first respondent Trevor Cork - second respondent David Dunkley - third respondent Steven Nicholson - fourth respondent
Representation
- Counsel:	Counsel: A P Webb QC with E W Young - appellants B Slabacu (solicitor) - respondents
- Solicitors:	Solicitors: Turner Freeman - appellants Colin Biggers & Paisley - respondents
File number(s):	2012/00013018
Decision Under Appeal
- Court / Tribunal:
- Before:	Schmidt J
- Date of Decision:	19 December 2011
- Citation:	[2011] NSWSC 1584
- Court File Number(s)	2009/29739
Publication Restriction: