Priestley v Priestley (No. 2)

HIS HONOUR: On 15 August 2016 I gave judgment for the plaintiff in the sum of $293,071.98 plus interest pursuant to s 100 of the Civil Procedure Act 2005 (NSW) calculated from 26 April 2010. It is common ground that my calculation of components of the plaintiff's quantum merit claim contained errors that should be corrected. That correction can be made either under the slip rule or pursuant to r 36.16(3B) as 14 days have not yet elapsed from the giving of judgment. One error in my reasons for judgment should be specifically noted. At [182] I said that Mr Johnson's calculation of a reasonable amount for travel should be allowed but discounted by 50 per cent to reflect the fact that Duncan also worked on Coramba. I then did not allow for that discount in my calculation of that component to the claim. The error lay in my inadequate proof-reading of the judgment prior to its delivery. Up to the penultimate draft of the judgment, I had indeed included such a discount, but on reflection, I decided it should not be made because the schedule Duncan prepared of his travel that was used by Mr Johnson had removed from it items relating to his travel to Coramba, and he had not been cross-examined to suggest that there should be a further discount. I intended to delete the last two sentences of paragraph 182 and it is by oversight that they remained in the published judgment.

The parties are agreed on other corrections that should be made in relation to the quantification of the amount to be allowed to Duncan in accordance with my reasons. As there is no issue in relation to that matter, it suffices to say that it is agreed the sum for which judgment should have been given is $229,436.55. Interest under s 100 of the Civil Procedure Act from 26 April 2010 to 15 August 2016 on that sum totals $104,643.51. Accordingly, I set aside Order 1 made on 15 August 2016 and in its place I make the following order:

On the question of costs, the plaintiff submitted that he had been successful in relation to a claim which the defendant had denied, and that costs should follow the event. The plaintiff sought an order that the defendant pay his costs. He said that he made a Calderbank offer of settlement on 24 July 2015 and whether it was unreasonable for the defendant to reject that offer would depend upon the decision on the issue of costs and the current realisable value of Salt Glen. The plaintiff seeks an order for liberty to apply to vary the costs order that he seeks if it becomes appropriate to do so. The plaintiff's Calderbank offer of 24 July 2015 was not before me.

The defendant submitted that there should be no order as to costs to the extent that the parties bear their own costs up to 20 July 2015 but that thereafter the plaintiff should pay the defendant's costs of the proceeding on the indemnity basis. The significance of the date 20 July 2015 was that this was the date on which the defendant made what purports to be both an offer of compromise and a Calderbank offer. The offer was in the following terms:

The offer was expressed to be made in full and final satisfaction of the plaintiff's claim. Hence it was made in relation not only to the plaintiff's claim for a quantum merit, but for interest on that claim, and also for costs. Leaving aside costs for the moment, when interest is taken into account the defendant has not done better than the sum offered by way of compromise. Hence no question of whether it was unreasonable for the plaintiff to reject the offer arises. Nor is it necessary to decide whether the offer was made in conformity with the rules concerning offers of compromise because it was not bettered. However, were it necessary to decide the question, I would not consider that the offer was an offer of compromise in accordance with the rules.

Mr Evans, for the defendant, submitted that the offer was exclusive of costs. That is not how I would construe it. The offer is not expressly stated to be inclusive of costs but it was stated to be offered in full and final satisfaction of the plaintiff's claim that included a claim for costs. Had the offer been accepted, I do not think it would have been open to the plaintiff thereafter to seek an order for costs. The offer did not conform with either of paragraphs (b) or (c) of r 20.26(3). It is unnecessary to pursue this question.

Under s 98 of the Civil Procedure Act, subject to the rules of Court, costs are in the Court's discretion. Rule 42.1 provides that:

The plaintiff brought three substantive claims. His first and principal claim was for a declaration that he is beneficially entitled to Salt Glen. That claim was put on the alternative bases of testamentary contract or proprietary estoppel. The defendant was the successful party on that claim. The second claim, which occupied little time and would have involved little cost for the defendant, was for a monetary sum secured by the mortgage. The defendant succeeded on that claim also. The plaintiff's third claim was for a quantum meruit. It was an alternative to the first claim. The plaintiff succeeded on that claim, although not to the extent of the amount sought.

The plaintiff submitted that because he has recovered judgment for over $300,000, he is to be regarded as the successful party when questions of costs are concerned. He submits that the issues on which he failed were not separable from those on which he succeeded. Had his claim been confined to the claim for restitution, almost all of the same evidence would have been called as was called, and the case would have taken about the same length of time to hear as it did. Apart from the mortgage claim which was de minimis, the factual issues between the different claims were inextricably interwoven.

This submission invites the question, from whose perspective, or against what frame of reference, is success to be judged?

From the defendant's perspective, she was the successful party on the principal claim that the plaintiff was beneficially entitled to Salt Glen. Just as the plaintiff can say that the same evidence would have been adduced had his claim been confined to the quantum meruit claim, the defendant can say that had the claim to Salt Glen been the only claim, much the same evidence in relation to the work done by the plaintiff for the deceased would have been adduced, at least in order to establish detrimental reliance.

Should the defendant therefore be regarded as the primarily successful party? Judged by the issues, and the particular claims made by the plaintiff, both parties were partly successful and partly unsuccessful. But the plaintiff was better off for having brought the litigation.

That leads to a consideration of what is meant in r 42.1 that subject to that Part the court is to order that costs follow the event unless it appears that some other order should be made as to the whole or part the costs.

Although little remarked upon in recent appellate authority, a rule that made use of substantially the same language, although in a somewhat different context, has had a long lineage.

In Reid, Hewitt & Co v Joseph [1918] AC 717 the House of Lords had to consider Order LXV, Rule 1 of the Rules of the Supreme Court. That relevantly stated:

In that rule the reference to "issue" in the phrase "any action, cause, matter, or issue" was to an issue in the nature of an interpleader issue or an issue on a particular question set down for trial by a jury, in contra-distinction to an issue that would arise for consideration as part of a cause of action (at 722).

In that case the plaintiff had sued for goods sold and delivered. The goods were a quantity of goat hair and the bags in which they were packed. The defendants alleged that the hair was sold by sample and that the goods were not up to sample and they alleged that the plaintiff had overcharged for the bags.

The defence that the goods were not to sample, and therefore of less value than claimed, succeeded. The other defence failed. Money had been paid into court. After allowance for the money paid into court the jury's verdict was £2.11s more than the moneys paid into court and judgment was entered for that sum with the plaintiff's costs to be taxed.

It was in this context that the relevant rule fell to be considered. What was to be allowed on taxation would depend upon what was meant by the expression “that the costs should follow the event", there having been no order otherwise.

The plaintiff argued that the event was the cause as a whole, and as he had recovered judgment he was entitled to all his costs. The defendants submitted that they had succeeded on the issue that the sale was a sale by sample, that the goods were not up to sample, and therefore under the rule they were entitled to their costs of that issue.

The defendants succeeded. It was ordered that they have their costs of the issues as to the quality of the goods.

In tracing the history of the law and practice in relation to costs, Lord Finlay LC said at 724-725 that:

It had previously been held (in Myers v Defries (1880) 5 Ex D 180) that where distinct causes of action were included in the same writ a defendant was entitled to his costs of a cause of action on which he succeeded even though the plaintiff otherwise was successful.

Lord Finlay held in substance that Myers v Defries was right and he adopted what was said by Thesiger LJ in that case to the effect that the same result would follow wherever there were separate issues, even though they arose under one cause of action only. After referring to other authorities his Lordship said that:

The other law Lords spoke to the same effect. Viscount Haldane said (at 742):

This decision was of course followed in England. It was followed in Victoria in Jelbarts Pty Ltd v McDonald [1919] VLR 478 and in New South Wales in Walker v The Public Trustee (1929) 46 WN (NSW) 166.

In the latter case the plaintiff had made two claims for work done as the defendant's agent. One was for commission of £37 claimed to be due on the sale of a property. The other was for a valuation fee of £4.4s. The plaintiff failed on the first claim but succeeded on the second. Verdict and judgment was given to the plaintiff for £4.4s. No special order was made with respect to costs. Under s129 of the District Court Act 1912 (NSW) the result was that costs were to "abide the event of the action".

White DCJ held that the effect of that rule was that the defendant was entitled to have his costs of the issue upon which he succeeded, which could be set off against the plaintiff's entitlement to the general costs of the action.

No doubt this practice led to a good deal of complexity on a taxation of costs when the taxing officer would have to determine what costs were referable, and it seems solely referable (Walker v The Public Trustee at 168), to the issue upon which the defendant succeeded.

Since those cases were decided, there seems to have been a change of practice. Moreover, r 42.1 now takes a somewhat different form in that it contains a direction to the Court as to prima facie what costs order is to be made.

I have never heard it said and I do not think it could be said, having regard to the way the rule is now framed, that a simple order that the defendant pay the plaintiff's costs, would entitle the defendant to an order for costs incurred upon an issue upon which he had succeeded.

Nonetheless, I think the background to the expression “costs follow the event” is material to an understanding of when a party should be held to be the successful party in the proceedings, accepting that the event might now be considered, at least primarily, as relating to the determination of the proceedings as a whole.

In Cretazzo v Lombardi (1975) 13 SASR 4, Jacobs J identified a more flexible approach to determining what is the event for the purposes of the rule. His Honour said at 16:

In Hughes v Western Australian Cricket Association Inc (1986) ATPR 40-748 Toohey J said (at 48136):

In Waters v PC Henderson (Australia) Pty Limited [1994] NSWCA 338; (1994) 254 ALR 328, Mahoney JA approved a statement in Ritchie that:

In that case Priestley JA (with whom in this respect Kirby P) agreed indicated a greater willingness to evaluate the outcome of distinct issues in making a costs order. His Honour said (at 331):

Nonetheless, there was no error in principle in the judge in taking a global view that the successful party was entitled to costs although it failed on particular issues.

In Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373, the Court of Appeal said (at [6]) that:

The principles were restated and elaborated upon to some extent in Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 where the Court of appeal (Beazley, Ipp and Basten JJA) said (at [38]):

The costs order in favour of a successful party can be ameliorated to reflect that party's failure on particular issues even though the successful party did not act unreasonably in raising or defending those issues (Permanent Trustee Australia v FAI General Insurance Co (Supreme Court of New South Wales, Hodgson CJ in EQ, 3 June 1998, unreported); Short v Crawley (No 40) [2008] NSWSC 1302 at [32]; Corbett Court Pty Ltd v Quasar Constructions (NSW) Pty Ltd [2008] NSWSC 1423).

More recently in Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (No 2) [2014] NSWCA 425, the Court of Appeal dealt with the position where plaintiffs made two separate and distinct claims for the payment of royalties. The claims were made in respect of two distinct locations. The plaintiffs were successful in relation to both claims at first instance. On appeal to the Court of Appeal, the defendant was successful in respect of one of the claims, but failed in respect of the other.

The defendant contended that for the purposes of costs there were two relevant events, namely that the plaintiff succeeded on its claim in respect of one location and, after appeal, the defendant succeeded in defeating the plaintiff's claim in respect of the other location.

In other words, the defendant contended that the result of the appeal was that each party was partly successful and partly unsuccessful, and it submitted that there should be no order for the costs of the proceedings at first instance.

The defendant's starting point was not accepted by the Court of Appeal. Macfarlan JA (with whom Meagher and Barrett JJA agreed) said (at [27]) that:

In Qantas Airways Limited v Chief Commissioner State Revenue (No 2) [2015] NSWSC 1037 I considered that I was bound to follow that approach.

Subsequently, the High Court allowed an appeal from the orders of the Court of Appeal. As a matter of precedent I might no longer be bound by what was said as to costs in Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd, except that more recently it was cited and applied by Macfarlan JA (with whom, in these respects, Meagher and Simpson JJA agreed) in Bartlett v Australia & New Zealand Banking Group Ltd [2016] NSWCA 30 at [96].

In Sze Tu v Lowe (No 2) [2015] NSWCA 91 Gleeson JA also addressed the meaning to be given to the word "event" in r 42.1. Meagher JA and Barrett JA agreed with Gleeson JA.

Gleeson JA approached the matter somewhat differently, and in a way which is perhaps more closely aligned to the history of the rule by saying (at [39]):

With some hesitation I think that the picture that emerges from the course of authority is that what is the relevant event for the purposes of the rule is primarily to be determined by reference to the outcome of the litigation and whether or not the plaintiff has obtained judgment in his favour and that that is so even if the defendant has defeated some claims and has succeeded on others, or has succeeded on some issues. I think that emerges from the history of the rule where even though the event was capable of referring to particular issues such that the defendant might be entitled to costs referable to the issues upon which he succeeded, nonetheless, a plaintiff who obtained judgment was entitled to his general costs of the proceedings. I think that also clearly appears from what was decided in Mount Bruce Mining, and although a different formulation was adopted by Gleeson JA in Sze Tu v Lowe, his Honour did not express dissent from what had previously been said.

That having been said, there is considerable force in the observations of Finkelstein and Gordon JJ in Bowen Investments v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107 at [5] where their Honours observed that fairness dictates how the discretion as to costs should be exercised, and that if an issue by issue approach produces a result that is fairer than giving the successful party all of his or her costs notwithstanding his or her failure on particular issues, then the issue by issue approach should be adopted.

Moreover, the question ultimately is not what is the appropriate starting point, but what should be regarded as a fair and just outcome in ordering costs (McLaughlin v Dungowan Manly Pty Ltd [2010] NSWSC 306 at [22] and [24] per Ward J).

I do not dissent from the plaintiff's submissions that factually, that is to say, having regard to the evidence adduced on the first and third of the plaintiff's claims, the issues were interwoven, and in that sense at least, not separable.

However, the Court of Appeal has made it clear that special costs orders can be made where an otherwise successful party has failed on a particular issue or group of issues that is clearly dominant. The expression used is issues that are "clearly dominant or separable.”

In my view, the first issue was the dominant issue in the proceedings and clearly so. It was dominant in monetary terms. The only evidence as to value was that the value of Salt Glen was estimated for probate purposes at $2 million.

It was also dominant in that the quantum meruit issue was only raised in the alternative. It was not raised as an additional claim. If the plaintiff had succeeded on the first claim, the quantum meruit issue would have fallen away.

How then should the matter be approached in exercise of the Court's discretion?

I do not think that the defendant's success in relation to the first and second of the claims justifies depriving the plaintiff of all of his costs and either ordering the plaintiff to pay the defendant's costs, which was a possibility advanced in the course of Mr Evans' oral submissions, or making no order as to costs.

But having regard to the defendant's success on what I consider to be a dominant issue, and having regard to the length of time that that issue took, at least at trial, I think a substantial discount for the plaintiff's costs is appropriate.

There was extensive cross-examination. All of it was to the point. I had the benefit of extensive submissions from the parties on the issues which went to the plaintiff’s claim based on testamentary contract and proprietary estoppel. The question of apportionment is not capable of mathematical precision. It is a matter of discretion and, I think, impression.

I take into account that much of the work done in preparation of the plaintiff's own affidavits related to the quantification of his claim and his description of the work he did. That was relevant both to the first and the third of the claims. Mr Johnson's affidavit went entirely to the quantum meruit claim. Other affidavits prepared by the plaintiff went more generally to the relationship between the plaintiff and the deceased.

Having regard to my assessment of the pre-trial work done based upon the affidavits that were adduced and the documents tendered, and the course of the trial including counsel's submissions, I think the appropriate order is that the defendant pay 60 per cent of the plaintiff's costs.

It is not possible to give particular reasons for adopting the figure of 60 per cent rather than some other figure. In this area, as in many other areas of the law, when it comes down to the final point of decision making, the assessment is very much a matter of discretion, intuition or evaluation.

For the reasons that I have given, I order that the defendant pay 60 per cent of the plaintiff's costs.

The plaintiff has sought a reservation of liberty to apply. Notwithstanding the views expressed by the Court of Appeal in Hancock v Arnold (No 2) [2009] NSWCA 19 at [10], it has repeatedly been held by the Court of Appeal that subject to the possible application of s 14 of the Civil Procedure Act a final costs order once entered, cannot be varied unless a notice of motion is filed within 14 days after the order is entered (Roads and Traffic Authority of NSW v Palmer (No 2) [2005] NSWCA 140 at [20]–[21]; Deputy Commissioner of Taxation v Meredith (No 2) [2008] NSWCA 133; (2008) 75 NSWLR 462 at [6]–[16]; Bennette v Cohen (No 2) [2009] NSWCA 162 at [6]–[11]; Coastwide Fabrication & Erection Pty Ltd v Honeysett (No 2) [2009] NSWCA 291 at [12]–[17]; Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd (No 2) [2009] NSWCA 336 at [5]–[11]; Malouf v Prince (No 2) [2010] NSWCA 51at [7]–[24]; Habib v Nationwide News Pty Ltd (No 2) [2010] NSWCA 291 at [33]–[39]; AT v Cmr of Police NSW (No 2) [2010] NSWCA 337 at [6]–[13]; Griffith v Australian Broadcasting Corporation (No 2) [2011] NSWCA 145 at [10]–[11], [34]; Kable v State of New South Wales (No 2) [2012] NSWCA 361 at [9]–[15]).

I do not think it is necessary to reserve liberty to apply. If the plaintiff seeks to vary the costs order that I have made it will be necessary for a motion to be filed within that time.

The defendant was sued as the executrix of Gordon Priestley's estate. She is entitled to her costs of the proceedings out of the estate on the indemnity basis and I so order.