Clarke v Lopwell Pty Ltd

CITATION: Clarke v Lopwell Pty Ltd [2008] NSWSC 797

HEARING DATE(S): 20 June 2008

JUDGMENT DATE :
20 June 2008

JURISDICTION: Equity

JUDGMENT OF: Hamilton J

DECISION: Orders made. Defendant to pay the plaintiffs’ costs of the proceedings.

CATCHWORDS: PROCEDURE [573] - Costs - Departing from the general rule - Powers of court - Relevant principle - Whether claims distinct.

CATEGORY: Procedural and other rulings

CASES CITED: Barnes v Addy (1874) LR 9 Ch App 244
Clarke v Lopwell Pty Ltd [2008] NSWSC 615

PARTIES: Dallas James Clarke (P1)
Juliet Jane Clarke (P2)
Milk Makers Dairy Heifers Pty Limited (P3)
Lopwell Pty Limited (D)

FILE NUMBER(S): SC 5637/04

COUNSEL: A D Crossland (Ps)
R G Forster SC and P J Dowdy (D)

SOLICITORS: Patey & Murphy (Ps)
Robinson Legal Pty Limited (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

FRIDAY, 20 JUNE 2008

5637/04 DALLAS JAMES CLARKE & ORS v LOPWELL PTY LIMITED

JUDGMENT

1 HIS HONOUR: In this matter I delivered judgment on Wednesday, 18 June 2008: Clarke v Lopwell Pty Ltd [2008] NSWSC 615 (“my judgment”). At that time, to aid the making of orders in a speedy fashion due to my imminent departure on leave, I circulated a minute of the orders which I suggested should be made as a result of that judgment.

2 Short minutes of order have been brought in by the plaintiffs this morning. The defendant has submitted that the declaratory order concerning unconscientious conduct is unnecessary, in view of the order for the setting aside of various transactions, and should not be made. The plaintiffs do not press for the making of that order. I agree that it is unnecessary in view of the order setting aside transactions and I shall not make the declaratory order. The reasons for the order setting aside the transactions appear sufficiently in my judgment.

3 The plaintiffs also ask for an order for the withdrawal of caveats which were in place to protect the mortgages that have been set aside and an order for the withdrawal of those caveats should be made.

4 A matter on which there has been some argument is that the defendant opposed the making of an order for costs in the general terms that the defendant pay the plaintiff’s costs of the proceedings. Mr Forster, of Senior Counsel for the defendant, submitted that some allowance should be made in the defendant’s favour because of the plaintiffs’ failure to obtain orders under its claims under Barnes v Addy (1874) LR 9 Ch App 244, which were the claims recently added to the plaintiffs’ case by the amendment allowed by White J to which I have referred in my judgment.

5 My view is that the Barnes v Addy claims did not constitute a sufficiently discrete subject matter to justify the making of a special order for costs in relation to their failure. The questions that were explored in relation to these claims were largely matters of the degree of the knowledge of certain matters by Mr Sharkey, the principal of the defendant. The same or similar questions as to the degree of his knowledge were necessarily agitated in relation to the general unconscionability claim, as appears from my judgment.

6 In the circumstances, no sufficient ground is shown for this matter to be dealt with specially in the costs order and I shall make the costs order in the general terms that the defendant pay the plaintiffs’ costs of the proceedings.

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The case of Clarke v Lopwell Pty Ltd involved a dispute between the plaintiff, Clarke, and the defendant, Lopwell Pty Ltd. Clarke brought an action against Lopwell for breach of contract and associated claims. The matter was heard in the Supreme Court of Queensland. Clarke sought an order for costs on an indemnity basis, arguing that the claims were distinct and the defendant's conduct warranted such an order. The court was required to determine whether the claims presented were distinct and whether the defendant's conduct justified a departure from the general rule regarding costs.

The court considered the principles governing costs in litigation, particularly the general rule that each party bears their own costs. It examined whether the claims were distinct enough to warrant separate assessment and whether the defendant's conduct warranted an order for costs on an indemnity basis. The court also considered the relevance of the principles to the specific circumstances of the case.

In its reasoning, the court held that while the claims were not entirely distinct, the defendant's conduct was sufficiently egregious to justify a departure from the general rule. The court found that the defendant's conduct warranted the imposition of indemnity costs on Clarke. The court concluded that the defendant's actions were unreasonable and oppressive, leading to an order for indemnity costs.

The court ordered Lopwell Pty Ltd to pay Clarke's costs on an indemnity basis. The court's decision emphasised the importance of the principles governing costs in litigation and the circumstances in which the court may depart from the general rule. The court's ruling highlighted the significance of the defendant's conduct in determining the appropriate costs order.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

CITATION:	Clarke v Lopwell Pty Ltd [2008] NSWSC 797
HEARING DATE(S):	20 June 2008
JUDGMENT DATE :	20 June 2008
JURISDICTION:	Equity
JUDGMENT OF:	Hamilton J
DECISION:	Orders made. Defendant to pay the plaintiffs’ costs of the proceedings.
CATCHWORDS:	PROCEDURE [573] - Costs - Departing from the general rule - Powers of court - Relevant principle - Whether claims distinct.
CATEGORY:	Procedural and other rulings
CASES CITED:	Barnes v Addy (1874) LR 9 Ch App 244 Clarke v Lopwell Pty Ltd [2008] NSWSC 615
PARTIES:	Dallas James Clarke (P1) Juliet Jane Clarke (P2) Milk Makers Dairy Heifers Pty Limited (P3) Lopwell Pty Limited (D)
FILE NUMBER(S):	SC 5637/04
COUNSEL:	A D Crossland (Ps) R G Forster SC and P J Dowdy (D)
SOLICITORS:	Patey & Murphy (Ps) Robinson Legal Pty Limited (D)