Wellington v Hutchison - [2024] NSWCA 54

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Wellington v Hutchison [2024] NSWCA 54
Hearing dates: 12 March 2024
Date of orders: 12 March 2024
Decision date: 12 March 2024
Before: Ward P; Simpson AJA
Decision:
1. Extend the time for the filing of the summons for leave to appeal to the date on which it was filed.
2. Dismiss with costs the summons for leave to appeal.

Catchwords:
APPEALS – Leave to appeal against costs order – Where proceeding had led to a mixed result – Where two alleged Calderbank offers had been made by applicant – Where applicant asserted that the practical outcome of the proceeding aligned with the compromise proposed in the Calderbank offers – Whether the reluctance to grant leave in relation to orders as to costs only should be overcome by the alleged serious risk of injustice – Whether House v The King error not to grant indemnity costs

Legislation Cited:
Corporations Act 2001 (Cth), ss 181, 236
Supreme Court Act 1970 (NSW), s 101
Uniform Civil Procedure Rules, r 51.10(2)

Cases Cited:
Calderbank v Calderbank [1975] 3 All ER 333
CJZ Pty Ltd v Giant Dwarf Pty Ltd; CJZ Pty Ltd v Morrow [2023] NSWCA 135
Dalma Formwork (Australia) Pty Limited v Maricic (No. 3) [2008] NSWCA 209
Fordham v Fordyce [2007] NSWCA 129
Gibson v Drumm [2016] NSWCA 206
House v The King (1936) 55 CLR 499
In the matter of Carbon Copies Composites Pty Ltd [2022] NSWSC 1762
In the matter of Carbon Copies Composites Pty Ltd [2023] NSWSC 1039
In the matter of Carbon Copies Composites Pty Ltd [2023] NSWSC 911

Category: Procedural rulings
Parties: Vaughan Stanley Wellington (in his capacity as Director of Carbon Copies Composites Pty Ltd ACN 630 633 126) (Applicant)
Colin James Hutchison (Respondent)
Representation:
Counsel:

A Bulley (Applicant)
S Bell (Respondent)

Solicitors:
Access Law Group (Applicant)

File Number(s): 2023/00432526
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity Division, Corporations List

Citation:

[2023] NSWSC 1039

Date of Decision:

30 August 2023

Before:

Black J

File Number(s):

2022/327499

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant sought leave to appeal from costs orders made in the Supreme Court on 30 August 2023, following the disposition of proceedings commenced by him, both in his personal capacity (for misleading and deceptive conduct) and on behalf of Carbon Copies Composites Pty Ltd (Receivers and Managers Appointed) (the Company) (relating to the development of certain intellectual property). The applicant also sought an extension of time to seek leave to appeal.

The applicant was unsuccessful in his personal claims, but had a measure of success of behalf of the Company. The primary judge declined the applicant’s application for special costs orders consequent upon the failure by the respondent (the second defendant in the proceedings below) to accept two offers said to be Calderbank offers. The applicant alleged that the practical outcome of the proceedings…

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 Wellington v Hutchison

Details

AGLC: Wellington v Hutchison [2024] NSWCA 54
Case: [2024] NSWCA 54
Decision Date: 12 March 2024

CaseChat Overview and Summary

The applicant, Wellington, sought leave to appeal against a costs order made in proceedings against the respondent, Hutchison. The original proceedings had resulted in a mixed outcome for the parties.

The primary legal issue before the Court of Appeal was whether to grant leave to appeal against the costs order. This involved considering whether the general reluctance to grant leave for appeals concerning costs only should be overcome due to an alleged serious risk of injustice. The applicant also contended that the court below had erred in not granting indemnity costs, referencing the principles established in *House v The King*.

The Court of Appeal considered the applicant's assertion that the practical outcome of the proceeding aligned with two alleged *Calderbank* offers made by the applicant. However, the Court ultimately determined that the threshold for granting leave to appeal on costs alone had not been met.

The Court ordered that time for filing the summons for leave to appeal be extended to the date it was filed, but then dismissed the summons for leave to appeal with costs.

Orders

Orders of the court

1. Extend the time for the filing of the summons for leave to appeal to the date on which it was filed.

2. Dismiss with costs the summons for leave to appeal.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Wellington v Hutchison [2024] NSWCA 54
Hearing dates:	12 March 2024
Date of orders:	12 March 2024
Decision date:	12 March 2024
Before:	Ward P; Simpson AJA
Decision:	1. Extend the time for the filing of the summons for leave to appeal to the date on which it was filed. 2. Dismiss with costs the summons for leave to appeal.
Catchwords:	APPEALS – Leave to appeal against costs order – Where proceeding had led to a mixed result – Where two alleged Calderbank offers had been made by applicant – Where applicant asserted that the practical outcome of the proceeding aligned with the compromise proposed in the Calderbank offers – Whether the reluctance to grant leave in relation to orders as to costs only should be overcome by the alleged serious risk of injustice – Whether House v The King error not to grant indemnity costs
Legislation Cited:	Corporations Act 2001 (Cth), ss 181, 236 Supreme Court Act 1970 (NSW), s 101 Uniform Civil Procedure Rules, r 51.10(2)
Cases Cited:	Calderbank v Calderbank [1975] 3 All ER 333 CJZ Pty Ltd v Giant Dwarf Pty Ltd; CJZ Pty Ltd v Morrow [2023] NSWCA 135 Dalma Formwork (Australia) Pty Limited v Maricic (No. 3) [2008] NSWCA 209 Fordham v Fordyce [2007] NSWCA 129 Gibson v Drumm [2016] NSWCA 206 House v The King (1936) 55 CLR 499 In the matter of Carbon Copies Composites Pty Ltd [2022] NSWSC 1762 In the matter of Carbon Copies Composites Pty Ltd [2023] NSWSC 1039 In the matter of Carbon Copies Composites Pty Ltd [2023] NSWSC 911
Category:	Procedural rulings
Parties:	Vaughan Stanley Wellington (in his capacity as Director of Carbon Copies Composites Pty Ltd ACN 630 633 126) (Applicant) Colin James Hutchison (Respondent)
Representation:	Counsel: A Bulley (Applicant) S Bell (Respondent) Solicitors: Access Law Group (Applicant)
File Number(s):	2023/00432526
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division, Corporations List Citation: [2023] NSWSC 1039 Date of Decision: 30 August 2023 Before: Black J File Number(s): 2022/327499