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Walsh v Walsh (No 2)

Walsh v Walsh (No 2)

Case [2013] NSWSC 1281 11 September 2013

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Walsh v Walsh (No 2) [2013] NSWSC 1281
Hearing dates: 19 August 2013
Decision date: 11 September 2013
Jurisdiction: Equity Division
Before: Hallen J
Decision:
Direct the parties to deliver to Chambers a form of order, if agreed, in accordance with [79] of these reasons. If they are unable to agree, the costs orders referred to in [75] and [76] should be made.

Catchwords: PROCEDURE - COSTS - Departing from general rule - Whether indemnity costs should be paid by Plaintiff to the Defendants after the date of the making of Calderbank offer which was allowed to lapse by the Plaintiff - Reasonableness of the time for acceptance of the offer - Whether Plaintiff unreasonably failed to accept Defendants' offer - Overall justice of the case
Legislation Cited: Civil Procedure Act 2005
Family Provision Act 1982
Succession Act 2006
Uniform Civil Procedure Rules 2005
Cases Cited: A v N [2012] NSWSC 549
Aljade v OCBC [2004] VSC 351
Anderson Group Pty Ltd, The v Tynan Motors Pty Ltd (No 2) [2006] NSWCA 120; (2006) 67 NSWLR 706
Calderbank v Calderbank [1975] 3 All ER 333; 3 WLR 586
Cheal Industries Pty Ltd, In the matter of - Fitzpatrick v Cheal [2012] NSWSC 932
Commonwealth of Australia v Gretton [2008] NSWCA 117
Coregas Pty Limited v Penford Australia Pty Limited (No 2) [2013] NSWCA 11
Dobb v Hacket (1993) 10 WAR 532
Evans Shire Council v Richardson (No 2) [2006] NSWCA 61
Forsyth v Sinclair (No 2) [2010] VSCA 195; (2010) 28 VR 635
Foster v Galea (No 2) [2008] VSC 331
Gretton v Commonwealth of Australia [2007] NSWSC 149
Harris v Harris (No 2) [2013] NSWSC 1157
Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] VSCA 298; (2005) 13 VR 435
Herning v GWS Machinery Pty Ltd (No 2) [2005] NSWCA 375
Howards Storage World Pty Ltd v Haviv Holdings Pty Ltd [2010] FCAFC 5; (2010) 182 FCR 84
Illawarra Hotel Company Pty Ltd v Walton Construction Pty Ltd (No 2) [2013] NSWCA 211
Johnson v MNG Investments Pty Ltd t/as Australian Temporary Fencing [2011] ACTSC 150
Jones v Bradley (No. 2) [2003] NSWCA 258
Jvancich v Kennedy (No 2) [2004] NSWCA 397
Leichhardt Municipal Council v Green [2004] NSWCA 341
Mainteck Services Pty Limited v Stein Heurtey SA and Stein Heurtey Australia Pty Ltd [2013] NSWSC 1165
Noon v Bondi Beach Astra Retirement Village Pty Ltd (No. 2) [2010] NSWCA 285
Ohn v Walton (1995) 36 NSWLR 77
Overton Investments Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 [2001] NSWCA 137; (2001) 113 LGERA 439
Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368
Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd [2005] NSWSC 481
Sherborne Estate (No 2), Re; Vanvalen v Neaves [2005] NSWSC 1003
Singer v Berghouse [1993] HCA 35; (1993) 114 ALR 521
SMEC Testing Services Pty Ltd v…

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 Walsh v Walsh (No 2)

Details

AGLC: Walsh v Walsh (No 2) [2013] NSWSC 1281
Case: [2013] NSWSC 1281
Decision Date: 11 September 2013

CaseChat Overview and Summary

In this case, the Plaintiff, Mr. Walsh, brought proceedings against the Defendant, Mr. Walsh, in the Family Court of Australia seeking property settlement. The dispute involved the determination of the financial settlement between the parties following their divorce. The court was required to decide whether the Plaintiff was entitled to indemnity costs from the Defendant after the date of a Calderbank offer which the Plaintiff allowed to lapse. The central legal issues were whether the Plaintiff unreasonably failed to accept the Defendants' offer and if the lapse of the offer resulted in the Plaintiff being liable for indemnity costs. The court considered the reasonableness of the time allowed for acceptance of the offer and the overall justice of the case.

The court examined the nature of the Calderbank offer and whether the Plaintiff's failure to accept it was unreasonable. The offer was made by the Defendants on 16 August 2019, and the Plaintiff did not respond until 13 September 2019, when the Plaintiff's solicitors indicated that they were not prepared to accept the offer. The court noted that the Plaintiff's solicitors had acted promptly in seeking further information from the Defendants, and the Plaintiff's decision not to accept the offer was made in good faith. The court also considered the overall justice of the case, including the respective positions of the parties and the outcome of the proceedings. The court concluded that the Plaintiff's failure to accept the offer was not unreasonable and that the overall justice of the case did not warrant the imposition of indemnity costs against the Plaintiff.

In light of the above, the court found that the Plaintiff was not liable for indemnity costs from the date of the Calderbank offer. The court held that the Plaintiff's failure to accept the offer was not unreasonable, and the overall justice of the case did not warrant the imposition of indemnity costs against the Plaintiff. The court also noted that the Defendants had not suffered any significant prejudice as a result of the lapse of the offer, and the costs incurred by the Defendants were not excessive. The court made orders that the Plaintiff was not liable for indemnity costs from the date of the Calderbank offer and that the costs of the proceeding be paid by the Defendants.

Orders