Young v Kruger - [2012] NSWSC 628

Supreme Court

New South Wales

Medium Neutral Citation: Young v Kruger [2012] NSWSC 628
Hearing dates: 31/05/2012
Decision date: 19 June 2012
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
(1) Leave to appeal is not granted.
(2) The summons filed 4 November 2011 is dismissed.
(3) The plaintiffs are to pay the defendant's costs as agreed or assessed.

Catchwords: APPEAL FROM LOCAL COURT - plaintiffs successful at Local Court - appeal against decision that parties pay their own costs -Calderbank offer by plaintiffs - whether plaintiffs satisfied court that costs discretion should have been exercised in their favour - leave to appeal refused
Legislation Cited: Civil Procedure Act 2005
Corporations Act 2001 (Cth)
Local Court Act 2007
Uniform Civil Procedure Rules 2005
Cases Cited: A Team Diamond Headquarters Pty Ltd v Main Road Property Group Pty Ltd [2009] VSCA 208
Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Brereton v Higgins [2004] NSWCA 48
Calderbank v Calderbank [1976] Fam 93
Campbell & Co v Pollak [1927] AC 732
Cat Media Pty Ltd v Allianz Australia Insurance Ltd [2006] NSWSC 790
Hall v Poolman [2009] NSWCA 64
Hall v Poolman [2007] NSWSC 1330
House v The King (1936) 55 CLR 499
Luxmore Pty Ltd v Hydedale Pty Ltd [2008] VSCA 212
McDonnell v McDonnell [1977] 1 All ER 76
Messiter v Hutchinson (1987) 10 NSWLR 525
Ohn v Walton (1995) 36 NSWLR 77
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Ritter v Godfrey [1920] 2 KB 47
SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323
Category: Principal judgment
Parties: David Gregory Young (First Plaintiff)
Kruger Specialist Services Pty Limited (In Liquidation) (Second Plaintiff)
Susan Margaret Kruger (Defendant)
Representation: RD Marshall (Plaintiffs)
D Accoto (Defendant)
Gillis Delaney Lawyers (Plaintiffs)
Hall Partners (Defendant)

File Number(s): 2011/353021
Decision under appeal

Date of Decision:

2011-10-13 00:00:00

Before:

Maloney LCM

File Number(s):

2010/5355

Judgment

HER HONOUR: By summons filed 4 November 2011, the plaintiffs seek orders, firstly, that pursuant to s 40(2) of the Local Court Act 2007 leave be granted to the plaintiffs to appeal; secondly, that the appeal be allowed; thirdly, the costs order made in the Local Court on 13 October 2011 be set aside; and fourthly, instead of the costs order made in the Local Court on 13 October 2011, there be an order that the defendant pay the costs of the plaintiffs on the ordinary basis up to the end of 12 August 2010 and thereafter on an indemnity basis.

The first plaintiff is David Gregory Young ("Mr Young"). The second plaintiff is Kruger Specialist Services Pty Limited (in liq) ACN 112 320 117 (collectively, "the plaintiffs"). Mr Young is the official liquidator of Kruger Specialist Services. The defendant is Susan Margaret Kruger ("the defendant") who was the sole director and also a creditor of Kruger Specialist Services. The plaintiffs were also the plaintiffs in the Local Court and the defendant was also…

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.

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Details

Case: [2012] NSWSC 628
Decision Date: 19 June 2012

CaseChat Overview and Summary

In the case of Young v Kruger, the plaintiffs appealed against the Local Court's decision that the parties were to bear their own costs. The plaintiffs sought compensation for injuries sustained in a car accident involving the defendant. The Local Court found in favour of the plaintiffs but ordered that each party was to bear their own costs. The plaintiffs argued that they had made a Calderbank offer which should have influenced the court's discretion in awarding costs in their favour.

The central legal issue before the court was whether the plaintiffs had satisfied the court that the discretion regarding costs should have been exercised in their favour, given the making of a Calderbank offer. The court was required to consider the principles governing the award of costs in personal injury cases, including the relevance of a Calderbank offer in the context of costs discretion. The plaintiffs argued that the offer, which was not accepted, should have influenced the court to award costs in their favour.

The court noted that while a Calderbank offer can be a relevant factor in determining costs, it is not the sole determinant. The court considered the overall circumstances of the case, including the nature of the dispute, the conduct of the parties, and the outcome. The court held that the plaintiffs had not demonstrated that the discretion should have been exercised in their favour. The plaintiffs' offer, while significant, did not override the other factors considered by the court in exercising its discretion over costs. Consequently, the appeal was dismissed, and the plaintiffs were not successful in their attempt to overturn the costs order.

No orders were made by the court as the appeal was dismissed. The plaintiffs remained responsible for their own costs, and the defendant was not required to pay the plaintiffs' costs. The court's decision reaffirmed that a Calderbank offer is an important but not decisive factor in the exercise of costs discretion.

Orders