Wilcox v Chapple (No 2)

Case [2024] NSWSC 1655


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

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

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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