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Wilcox v Chapple (No 2)

Wilcox v Chapple (No 2)

Case [2024] NSWSC 1655 20 December 2024

Costs

Issue Estoppel

Abuse of Process

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Wilcox v Chapple (No 2) [2024] NSWSC 1655
Hearing dates: On the papers
Date of orders: 20 December 2024
Decision date: 20 December 2024
Jurisdiction: Equity
Before: Ward P
Decision:
As to the Equity Proceeding (2021/59314):
1.   Order that the costs payable by the plaintiff (Robert Wilcox) to the first and second defendants (Monique Wye and John Chapple) be on the indemnity basis.
2.   Order that the costs payable by the plaintiff (Robert Wilcox) to the fourth defendant (Benjamin Wilcox) be on the ordinary basis.
As to the Family Provision Proceeding (2023/168649):
3.    Order that the costs payable by the plaintiff (Robert Wilcox) to the first defendant (Monique Wye) be on the ordinary basis up to and including 7 June 2024 and on the indemnity basis from 7 June 2024.

Catchwords:
COSTS – Application for indemnity costs – Whether conduct of litigation by plaintiff in relation to trust claims (the Equity Proceeding) unreasonable where claims had been subject of release and where proceedings barred by issue estoppel and or Anshun estoppel or Anshun estoppel – Where allegations of fraud made without evidentiary foundation whether relevant delinquency on part of plaintiff – Where unreasonable rejection by plaintiff of Calderbank offer made by second defendant in Equity Proceeding and first defendant in Family Provision Proceeding for settlement of both proceedings

Legislation Cited:
Succession Act 2006 (NSW), s 96(2)
Uniform Civil Procedure Rules 2005 (NSW), r 36.15

Cases Cited:
Anderson Group Pty Ltd v Tynan Motors Pty Ltd (No 2) (2006) 67 NSWLR 706; [2006] NSWCA 120
Australian Transport Insurance Pty Ltd v Graeme Phillips Road Transport Insurance Pty Ltd (1986) 71 ALR 287
Berrigan Shire Council v Ballerini (No 2) [2006] VSCA 65
Calderbank v Calderbank [1975] 3 All ER 333
Chief Commissioner of State Revenue v Platinum Investments Management Ltd (No 2) [2011] NSWCA 197
Clutterbuck v HSBC plc [2015] EWHC 3233
Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225; [1993] FCA 801
Commissioner of State Revenue v Challenger Listed Investments Ltd (No 2) [2011] VSCA 398
Commonwealth of Australia v Gretton [2008] NSWCA 117
Evans Shire Council v Richardson (No 2) [2006] NSWCA 61
Fountainhead Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397
Goodwin v Avison [2021] EWHC 2356
Harrison v Schipp [2001] NSWCA 13
Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435; [2005] VSCA 298
Herning v GWS Machinery Pty Ltd (No 2) [2005] NSWCA 375
Hylepin Pty Ltd v Doshay Pty Ltd (No 2) [2020] FCA 1631
J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (WA Branch) (No 2) (1993) 46 IR 301
Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59
Leichhardt Municipal Council v Green [2004] NSWCA 341
Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721
Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344
Oshlack…

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 Wilcox v Chapple (No 2)

Details

AGLC: Wilcox v Chapple (No 2) [2024] NSWSC 1655
Case: [2024] NSWSC 1655
Decision Date: 20 December 2024

CaseChat Overview and Summary

The case of Wilcox v Chapple (No 2) involved a complex dispute concerning indemnity costs, the unreasonable conduct of litigation, and the application of various estoppels. The plaintiffs, who had previously released certain trust claims, sought indemnity costs from the defendants. The defendants argued that the plaintiffs had unreasonably pursued these claims despite the issue and Anshun estoppels that barred them. Furthermore, the defendants contended that the plaintiffs' allegations of fraud were without evidentiary support and that the plaintiffs had unreasonably rejected a Calderbank offer, which proposed a settlement of both the equity and family provision proceedings.

The central legal issues before the court were whether the plaintiffs' conduct in pursuing the trust claims was unreasonable, given the existence of estoppels and the lack of evidence for the fraud allegations. Additionally, the court had to determine if the rejection of the Calderbank offer constituted a delinquencies that warranted an order for indemnity costs. The court examined the principles of indemnity costs, the application of issue and Anshun estoppels, and the circumstances in which a Calderbank offer should be accepted. The court also considered the relevance of the lack of evidentiary foundation for the fraud allegations in assessing the reasonableness of the plaintiffs' conduct.

In its reasoning, the court held that the plaintiffs' conduct in pursuing the trust claims was unreasonable, as it was contrary to the established estoppels and unsupported by evidence. The court found that the plaintiffs had acted unreasonably by rejecting the Calderbank offer, which proposed a comprehensive settlement of both proceedings. The court concluded that the plaintiffs' actions amounted to delinquency, justifying an order for indemnity costs. The court emphasised that the unreasonable rejection of the Calderbank offer was a significant factor in its decision, as it demonstrated a disregard for a fair and pragmatic resolution of the dispute.

The final orders of the court were that the plaintiffs were to pay the defendants' costs of the proceedings on an indemnity basis. This decision underscores the importance of acting reasonably in litigation and the consequences of rejecting a fair settlement offer without just cause. The court's ruling serves as a reminder to litigants of the need to consider all relevant factors, including the application of estoppels and the merits of settlement offers, in the conduct of their cases.

Orders