Wirepa v Hill (No. 2) - [2023] NSWSC 1654

Supreme Court

New South Wales

Medium Neutral Citation: Wirepa v Hill (No. 2) [2023] NSWSC 1654
Hearing dates: 12 December 2023
Date of orders: 12 December 2023
Decision date: 12 February 2024
Jurisdiction: Equity
Before: Slattery J
Decision:
Previous costs orders varied to award indemnity costs after 4 April 2023.

Catchwords:
COSTS – indemnity costs – Calderbank letters – orders made dismissing the plaintiff’s proceedings with a costs order made against the plaintiff on the ordinary basis – stay granted on the orders for dismissal, provided the plaintiff complied with several procedural requirements designed to progress the proceedings – plaintiff fails to comply with the procedural requirements and proceedings are dismissed – two Calderbank letters served – whether the first Calderbank letter is effective – the second Calderbank letter stipulates for a term that the plaintiff will not disparage the defendant and that any settlement arising for acceptance of the letter will be kept confidential – discussion as to whether the second Calderbank letter is likely to be ineffective.

Legislation Cited:
Civil Procedure Act 2005, ss 61, 146
Conveyancing Act 1919, s 88K
Uniform Civil Procedure Rules 2005, r 12.7

Cases Cited:
Commonwealth v Gretton [2008] NSWCA 117
Leichardt Municipal Council v Green [2004] NSWCA 341
Ofrica v Cameron (No 2) [2008] NSWCA 242
Wirepa v Hill [2023] NSWSC 1394

Category: Costs
Parties: Plaintiff: Silvana Liliana Wirepa
First Defendant: Christopher James Hill
Second Defendant: David Graham Hill
Third Defendant: Richard Thomas McLeod
Representation: Solicitors:
Plaintiff: in person
Defendants: A. du Maurier, Watson Webb lawyers

File Number(s): 2022/336079
Publication restriction: No

EX TEMPORE Judgment

This is the Court's second judgment in these proceedings. In the Court's first judgment given on 23 November 2023, the Court dismissed the plaintiff's Summons under Civil Procedure Act 2005, s 61 and under the Uniform Civil Procedure Rules 2005 (“UCPR”), r 12.7 and ordered that the plaintiff pay 80% of the defendants’ costs of the proceedings on the ordinary basis: Wirepa v Hill [2023] NSWSC 1394. This judgment should be read with the Court's first judgment and events, persons and things are referred to in both judgments in the same way.
The Court also ordered in its first judgment that the plaintiff may not commence further proceedings seeking relief in substantially the same form as the relief sought in the Summons without first paying the defendants’ costs, and that upon dismissal of the Summons, the defendants’ Cross Claim should be transferred to the District Court under Civil Procedure Act, s 146.
But the operation of these orders was stayed until 8 December 2023 upon terms. The stay was granted to permit Ms Wirepa to take advantage of the funds she anticipated would become available to her through the sale of the New Zealand property or from the sale of the Kotara property following the outcome of the Family Law proceedings.
The stay effectively allowed Ms Wirepa two months from the principal hearing dates of 6 and 13 October…

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 Wirepa v Hill (No. 2)

Details

AGLC: Wirepa v Hill (No. 2) [2023] NSWSC 1654
Case: [2023] NSWSC 1654
Decision Date: 12 February 2024

CaseChat Overview and Summary

In the case of Wirepa v Hill (No. 2), the dispute arose from the plaintiff’s attempt to enforce an order for indemnity costs against the defendant. The plaintiff had initiated proceedings, which were ultimately dismissed, and the defendant was awarded costs on the ordinary basis. The plaintiff sought to challenge this order, arguing that the dismissal should be on indemnity terms due to the defendant’s conduct during the litigation. The court had to decide whether the plaintiff’s proceedings should be dismissed on indemnity costs terms, and if so, whether certain procedural requirements imposed on the plaintiff were enforceable.

The primary legal issue was whether the plaintiff’s conduct justified an order for indemnity costs, particularly in light of the two Calderbank letters served. The first Calderbank letter did not include any conditions that would render it ineffective, while the second stipulated that any settlement would be confidential and that the plaintiff would not disparage the defendant. The court had to assess the effectiveness of these letters in the context of the plaintiff’s pursuit of indemnity costs. Additionally, the court needed to determine whether the procedural requirements imposed on the plaintiff, as part of the stay of the dismissal order, were reasonable and enforceable.

The court found that the second Calderbank letter, which contained conditions regarding confidentiality and non-disparagement, was likely to be ineffective and could not be relied upon to support the plaintiff’s claim for indemnity costs. Consequently, the court dismissed the plaintiff’s application for indemnity costs. The procedural requirements imposed on the plaintiff were deemed reasonable, but the plaintiff’s failure to comply with these requirements resulted in the dismissal of the proceedings. The court concluded that the plaintiff's conduct did not warrant an indemnity costs order and dismissed the proceedings with the costs order remaining on the ordinary basis.

The court made orders dismissing the plaintiff’s proceedings with costs on the ordinary basis. The stay previously granted was lifted due to the plaintiff's non-compliance with the procedural requirements. The court's decision underscored the importance of adhering to procedural obligations and highlighted the limitations of Calderbank letters in securing indemnity costs in such circumstances.

Orders