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Young v Hones (No 3)

Young v Hones (No 3)

Case [2014] NSWSC 499 1 May 2014

Limitation Periods

Costs

Injunction

Admissibility of Evidence

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Young v Hones (No 3) [2014] NSWSC 499
Hearing dates: 12/12/2013,14/02/2014 (Written submissions)
Decision date: 01 May 2014
Before: Garling J
Decision:
(1) Vacate Order 3 made on 27 September 2013 and all previous costs orders made in favour of each defendant.
(2) Order the plaintiff to pay the costs of the first and second defendants including reserved costs, in the sum of $190,000.
(3) Order the plaintiff to pay the costs of the third defendant, including reserved costs in the sum of $200,000.
(4) Order the plaintiff to pay the costs of the fourth and fifth defendants, including reserved costs, in the sum of $110,000.
(5) Order that pursuant to s 101(4) of the Civil Procedure Act 2005, the plaintiff pay interest on each of the sums specified in Orders 2, 3 and 4 on and from 1 July 2013.
(6) Order until further order, that Orders 2, 3 and 4 be stayed.
(7) Motions of each defendant of 4 November 2013, and 14 November 2013, and of the plaintiff of 14 November 2013, are otherwise dismissed.
(8) Order that the plaintiff and each defendant pay their own costs of the Motions of the defendant of 4 November 2013 and 14 November 2013, and of the plaintiff of 14 November 2013.

Catchwords: COSTS - indemnity costs; applications for - Calderbank letters; whether - unreasonable rejection - whether letters contained a real element of compromise - whether durations of offers were reasonable - COSTS - gross sum costs; applications for - Civil Procedure Act, s 98 - discretion to make a gross sum costs order - whether costs assessment process would be protracted and unduly complex - whether plaintiff would be able to discharge costs liability - whether order would achieve finality in proceedings - whether sufficient evidence to support application - whether in the interests of justice - COSTS - interest on costs orders; applications for - Civil Procedure Act, s 101 - whether would further the overriding purpose of the Civil Procedure Act
Legislation Cited: Civil Procedure Act 2005
Legal Profession Act 2004
Uniform Civil Procedure Rules 2005
Cases Cited: Auspine Ltd v Australian Newsprint Mills Ltd (1999) 93 FCR 1
Calderbank v Calderbank [1975] 3 LL ER 333; [1976] Fam 93
Hadid v Lenfest Communications Inc [2000] FCA 628
Hamod v State of NSW [2011] NSWCA 375
Hancock v Arnold (No 2) [2009] NSWCA 19
Harrison & Anor v Schipp [2002] NSWCA 213; (2002) 54 NSWLR 738
Hazeldene's Chicken Farm Pty Ltd v Victoria WorkCover Authority (No 2) [2005] VSC 298; (2005) 13 VR 435
Idoport Pty Ltd v National Australia Bank Ltd & Ors [2007] NSWSC 23
Leary v Leary [1987] 1 All ER 261
Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344
Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368
Savage v Australian Unity Fund Management Ltd [2011] NSWCA 270
The Anderson Group Pty Ltd v…

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 Young v Hones (No 3)

Details

AGLC: Young v Hones (No 3) [2014] NSWSC 499
Case: [2014] NSWSC 499
Decision Date: 01 May 2014

CaseChat Overview and Summary

In the case of Young v Hones, the defendant, Hones, sought a ruling on several costs-related applications. The dispute arose from a claim brought by Young against Hones for damages. The case was heard in the Supreme Court of New South Wales. Hones applied for indemnity costs, arguing that Young's rejection of their Calderbank offer was unreasonable, as the offer contained a real element of compromise, and the duration of the offer was reasonable. Hones also sought a gross sum costs order under section 98 of the Civil Procedure Act, asserting that the costs assessment process would be protracted and unduly complex, and that it would be in the interests of justice to achieve finality in the proceedings. Additionally, Hones applied for interest on the costs orders under section 101 of the Civil Procedure Act, arguing that it would further the overriding purpose of the Act.

The court considered whether Hones' Calderbank offer contained a real element of compromise and whether the duration of the offer was reasonable. The court also examined whether the assessment of costs would be protracted and unduly complex and whether an order would achieve finality in the proceedings. Furthermore, the court evaluated whether there was sufficient evidence to support the application for a gross sum costs order and whether it would be in the interests of justice to make such an order. The court also considered whether the application for interest on the costs orders would further the overriding purpose of the Civil Procedure Act.

In its judgment, the court found that Hones' Calderbank offer did contain a real element of compromise, but the duration of the offer was not reasonable. Consequently, Hones was not entitled to indemnity costs. Regarding the gross sum costs order, the court found that the costs assessment process would indeed be protracted and unduly complex, and that making such an order would achieve finality in the proceedings and be in the interests of justice. Therefore, the court granted Hones' application for a gross sum costs order. As for the application for interest on the costs orders, the court found that it would further the overriding purpose of the Civil Procedure Act and granted the application.

The court ordered that Hones was to recover a gross sum of costs from Young and that interest was to be paid on those costs from the date of the order until the date of satisfaction.

Orders