Chanter v. Catts (No.2)

HODGSON JA: On 25 November 2005, this Court by a majority allowed the appeal in this matter and made orders disposing of all issues, except for costs at first instance. In relation to that question, the Court made the following order: 7. Appellant within 7 days to submit either agreed orders as to costs at first instance or submissions as to such costs, and in the latter event respondent to provide submissions within a further 7 days.

The appellant provided submissions on 5 December 2005. The respondent’s submissions were not received until 17 May 2006. Originally, the respondent was proposing not to make submissions, but apparently that changed by reason of a decision of the Court of Appeal handed down on 12 April 2006: Vollmer v. Hauber Davidson [2006] NSWCA 79. There was apparently also delay because of illness of Senior Counsel.

The orders for costs at first instance were that the respondent pay the appellant’s costs on a party and party basis until 1 September 2004, and that thereafter the appellant pay the respondent’s costs on a party and party basis; and that each party bear its own costs of the costs argument on 2 December 2004.

The reason for ordering the appellant to pay the respondent’s costs from 1 September 2004 was an offer by the respondent to settle the case on the basis that the Hunters Hill property be sold and that the appellant receive the balance of the proceeds of sale after payment of the existing mortgage of about $480,000.00. There were also other conditions of that offer, including that each party pay its own costs of the proceedings.

On appeal, the appellant has done better than that offer by about $60,000.00, plus the absence of conditions. This defeats the reason for the orders below concerning the period from 1 September 2004.

In my opinion, although the proceedings achieved less than the appellant claimed, the result is substantially better than the appellant could have obtained without court proceedings and counts as substantial success. I do not think the decision in Volmer counts against costs being awarded on the basis of that substantial success.

Accordingly, the respondent should be ordered to pay the appellant’s costs of the proceedings at first instance.

BRYSON JA: I agree with Hodgson JA

HUNT AJA: I agree with Hodgson JA.