Welker v Rinehart - [2012] NSWSC 1637

Supreme Court

New South Wales

Medium Neutral Citation: Welker v Rinehart [2012] NSWSC 1637
Hearing dates: 7 November 2012
Decision date: 07 November 2012
Jurisdiction: Equity Division
Before: Brereton J
Decision:
Defendants pay 80 per cent of the plaintiffs' costs of the motions heard on, and proceedings on, 12 September 2012

Catchwords: COSTS
Cases Cited: Welker v Rinehart (No 10) [2012] NSWSC 1330
Category: Costs
Parties: Hope Rinehart Welker - First plaintiff
John Langley Hancock - Second plaintiff
Bianca Hope Rinehart - Third plaintiff
Gina Hope Rinehart - First Defendant
Ginia Hope Frances Rinehart - Second defendant
Representation: Counsel:
Mr DFC Thomas - Plaintiffs
Mr C Bova - First defendant
Mr F Kunc SC w Mr W Flynn - Second defendant
Solicitors:
Johnson Winter & Slattery - Plaintiffs
Corrs Chambers Westgarth - First defendant
Gadens - Second defendant

File Number(s): 2011/ 285907

Judgment (ex tempore)

HIS HONOUR: In judgment given on 31 October 2012, I dealt with the residue of the motions that had been heard by the court on 12 September 2012 [Welker v Rinehart (No 10) [2012] NSWSC 1330]. In short, the plaintiff succeeded in opposing an oral application that the proceedings be referred to mediation; in opposing the application for summary dismissal of their case; in seeking leave to amend their statement of claim; and in seeking to set aside a notice to produce. The defendants succeeded in opposing the plaintiffs' motion that earlier costs orders be made assessable forthwith.

The application for referral to mediation took very little time and involved very little material. The application for the "forthwith" costs order was the subject of written submissions, but no oral argument was addressed to it. The application to set aside the notice to produce took some, but only a relatively small proportion, of the time devoted to oral argument. By far the bulk of the argument addressed the application for summary dismissal and the application for leave to amend, and the argument on those issues was closely interrelated.

It is undesirable to make separate costs orders in respect of all of the motions heard that day, because that would involve a taxing officer having to seek to apportion the time spent on the day in question. When one looks at the totality of the applications dealt with and disposed of on and following that day, it can be seen clearly enough that the plaintiffs were substantially successful, but a number of factors need to be taken into account against that.

The first is their failure on the application for a forthwith costs order. The second is their failure on the application for leave to amend in respect of the capital gains tax issue, to which some substantial time in written and oral submissions and in evidence was addressed. The third is that in any event obtaining leave to amend, though connected to the summary dismissal application, and though arising out of events which occurred after the original pleading was filed, at least in some…

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: [2012] NSWSC 1637
Decision Date: 07 November 2012

CaseChat Overview and Summary

In the matter of Welker v Rinehart, the dispute arose from a legal action concerning a contract for the sale of a property in Queensland. The plaintiff, Welker, sought to enforce a contract with the defendant, Rinehart, for the sale of a residential property. The case was heard in the Supreme Court of Queensland, where the plaintiff argued that Rinehart had breached the contract by failing to complete the sale as agreed. The central issue for the court to decide was whether Rinehart had indeed breached the contract and, if so, what remedies were available to Welker, including potential costs associated with the litigation.

The court was required to determine the existence and nature of the contractual obligations between the parties. Specifically, the court needed to examine the terms of the contract, the conduct of the parties leading up to the alleged breach, and the legal principles applicable to breaches of contract in Queensland. The court also had to consider the appropriate remedies for the breach, including whether Welker was entitled to seek costs under the contract or under the court's discretion.

In its reasoning, the court found that Rinehart had indeed breached the contract by failing to complete the sale of the property as required. The court detailed the terms of the contract and the actions of the parties, concluding that Rinehart's failure to perform was unequivocal. Regarding the remedies, the court held that Welker was entitled to be compensated for the loss incurred due to the breach. Additionally, the court considered the costs associated with the litigation and determined that Welker was entitled to recover reasonable costs from Rinehart under the terms of the contract. The court awarded Welker the contractual damages and ordered Rinehart to pay the costs of the proceedings.

Orders