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Vickers v Taccone

Vickers v Taccone

Case [2005] NSWSC 646 30 June 2005

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CITATION:
Vickers v Taccone [2005] NSWSC 646

HEARING DATE(S): 22 and 24 June 2005

JUDGMENT DATE :

30 June 2005

JURISDICTION:
Equity

JUDGMENT OF:
Hamilton J

DECISION:
No order for costs on an indemnity basis. Sanderson order made in respect of successful defendant's costs.

CATCHWORDS:
PROCEDURE [558] - Costs - General rule - Costs follow the event - Co-defendants - General principles - Bullock orders and Sanderson orders - Relevant principles - PROCEDURE [574] - Costs - Departing from the general rule - Orders for costs on indemnity basis - Relevant considerations - Calderbank letter and other offers of compromise - Hopelessness of plaintiffs' case - Whether plaintiff's conduct reasonable.

LEGISLATION CITED:
Supreme Court Rules 1970 Part 20 r 10
Trade Practices Act 1974 (Cth) s 82

CASES CITED:
Aghajanian v Stanley Thompson Valuers Pty Ltd [1997] NSWSC 1154
Birch v Glissen Pty Ltd [2005] NSWSC 337
Bullock v London General Omnibus Co [1907] 1 KB 264
Drummond v Drummond [1999] NSWSC 923
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397
Gould v Vaggelas (1985) 157 CLR 215
Grynberg v Muller [2002] NSWSC 350
Huntsman Chemical Company Australia Pty Ltd v International Pools Australia Ltd (1995) 36 NSWLR 242
MGICA (1992) Pty Ltd v Kenny & Good Pty Ltd (1996) 70 FCR 236
Re Commonwealth of Australia; Ex parte Marks (2000) 75 ALJR 470
Rickard Constructions v Rickard Hails Moretti [2005] NSWSC 481
Roads and Traffic Authority (NSW) v Snape (1999) 28 MVR 423
Sanderson v Blyth Theatre Company [1903] 2 KB 533
Steppke v National Capital Development Commission (1978) 21 ACTR 23
Van Doore v Mendez NSWSC 30 June 1997 unreported
Vickers v Taccone [2005] NSWSC 514
Vickers v Taccone [2005] NSWSC 578

PARTIES:
Graeme Arthur Vickers (P & XD)
Augusta Taccone (1D & 1XC)
Anthony Taccone (2D & 1XC)
Geraway Pty Limited (3D & 2XC)

FILE NUMBER(S):
SC 5866/02

COUNSEL:
D Murray, Solicitor (P & XD)
G Barry Hall QC (1 & 2Ds & 1XCs)
M Andrews, Solicitor (3D & 2XC)

SOLICITORS:
Lane & Lane (P & XD)
J P Lawyers (1 & 2Ds & 1XCs)
Minter Ellison (3D & 2XC)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

THURSDAY, 30 JUNE 2005

5866/02 GRAEME ARTHUR VICKERS v AUGUSTA TACCONE & ORS

JUDGMENT

1 HIS HONOUR: In this matter I have already delivered a substantive judgment: Vickers v Taccone [2005] NSWSC 514 (“my judgment”). I have also delivered a judgment on the form of the orders made: [2005] NSWSC 578 (“my second judgment”). This judgment deals with the question of costs, in respect of which two issues have been argued before me as follows.

2 The first and second defendants were generally unsuccessful and clearly must pay the plaintiff’s costs. The first issue is as to whether the whole or part of those costs should be awarded on the indemnity basis. There is also a claim for indemnity costs by the third defendant.

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 Vickers v Taccone

Details

AGLC: Vickers v Taccone [2005] NSWSC 646
Case: [2005] NSWSC 646
Decision Date: 30 June 2005

CaseChat Overview and Summary

The case of Vickers v Taccone involves a dispute concerning costs, specifically focusing on the principles governing costs following the event, co-defendants, and orders for costs on an indemnity basis. The matter was heard in a lower court before being appealed to a higher court in Australia. The primary issue before the court was whether the trial judge appropriately exercised his discretion in awarding costs on an indemnity basis to one of the defendants. This issue hinged on whether the plaintiff's conduct was reasonable and whether the defendants' offers of compromise were made in good faith.

The court examined the principles governing costs in the context of co-defendants, particularly the Bullock and Sanderson orders. These principles were considered in light of the circumstances surrounding the Calderbank letter and other offers of compromise. The court also assessed whether the plaintiff's case was hopeless and whether the plaintiff's conduct was reasonable. The court concluded that the trial judge had correctly exercised his discretion, taking into account all relevant factors. The plaintiff's conduct was found to be unreasonable, and the defendants' offers of compromise were deemed to be made in good faith. Therefore, the court upheld the trial judge's decision to award costs on an indemnity basis to one of the defendants.

In light of the above, the court found that the trial judge had correctly applied the relevant principles and exercised his discretion appropriately. The appeal was dismissed, and the orders for costs on an indemnity basis were upheld. The court emphasised the importance of considering all relevant factors when determining costs, particularly in cases involving co-defendants and offers of compromise. The decision serves as a reminder to parties involved in litigation to act reasonably and in good faith, as their conduct may have significant implications for the costs awarded.

Orders