Turner v O’Bryan-Turner (No 2) [2021] NSWSC 101

Supreme Court New South Wales

Medium Neutral Citation: Turner v O'Bryan-Turner (No 2) [2021] NSWSC 101 Hearing dates: On the papers Date of orders: 18 February 2021 Decision date: 18 February 2021 Jurisdiction: Equity Before: Ward CJ in Eq Decision: (1) As to the costs of the 2017 Proceeding: (i) save as to the costs of the cross-claim filed 31 May 2017 by Wendy purportedly as tutor for John, which are the subject of (iii) below, order that Wendy's estate pay 20% of the Nick interests' costs of the 2017 Proceeding so far as those costs were identifiably referable to the claims brought against Wendy; (ii) again, save as to the costs of the cross-claim filed 31 May 2017 by Wendy purportedly as tutor for John, which are the subject of (iii) below, order that Nick, as tutor for John, pay David and Karl's costs of the 2017 Proceeding and that Allawah pay the costs of the abandoned s 37A Conveyancing Act claim brought by it; (iii) order that the costs of the cross-claim filed on 31 May 2017 by Wendy in the 2017 Proceeding be costs for which the Nick interests should be liable vis a vis David and Karl but that, as between Wendy and the Nick interests, each should bear her, his or its own costs of that cross-claim. (2) As to the costs of the 2019 Proceeding, order that the Nick interests pay the plaintiff (Angelena)'s costs, as tutor for John, on the ordinary basis. (3) List the matter for directions at 8.30am on 3 March 2021 as to the application by the David/Karl interests for discharge or variation of the interlocutory regime put in place by Sackar J in these proceedings and direct the Nick interests to file any brief written submissions on that issue by 4pm on 24 February 2021. (4) Confirm that the time for written submissions in relation to the terms of the charge to be imposed in accordance with my principal reasons was extended to 30 April 2021, with liberty to apply to restore the matter for directions at an earlier time on 48 hours' notice. (5) Confirm that leave was given, to the extent that such leave be necessary, for the David/Karl interests to disclose to NAB for the purposes of the forthcoming Farm Debt mediation the Opteon Valuation Report that was tendered in evidence in these proceedings. (6) Otherwise, stand the matter over for final directions on 4 May 2021. Catchwords: COSTS – Party/Party – Bases of quantification – Indemnity basis – Exceptions to general rule that costs follow the event – Calderbank offers – Orders when proceedings involve multiple parties – Sanderson orders CIVIL PROCEDURE – Implied undertakings – Documents to which applies Legislation Cited: Civil Procedure Act 2005 (NSW), s 98 Competition and Consumer Act 2010 (Cth), Sch 2 –Australian Consumer Law Conveyancing Act 1919 (NSW), s 37A Farm Debt Mediation Act 1994 (NSW) Powers of Attorney Act 2003 (NSW), s 36 Practice Note SC Gen 2 Succession Act 2006 (NSW) Supreme Court Act 1970 (NSW), s 23 Uniform Civil Procedure Rules 2005 (NSW), r 42.1 Cases Cited: Alterskye v Scott [1948] 1 All ER 469 Anderson Group Pty Ltd v Tynan Motors Pty Ltd (No 2) (2006) 67 NSWLR 706; [2006] NSWCA 120 Baden Delvaux & Lecuit v Societe Generale pour Favoriser le Development du Commerce et de l'Industrie en France SA [1993] 1 WLR 509 Barnes v Addy (1874) LR 9 Ch App 244 British American Tobacco Australia Services Ltd v Cowell (No 2) (2003) 8 VR 571; [2003] VSCA 43 Calderbank v Calderbank [1975] 3 All ER 333 Chief Commissioner of State Revenue v Platinum Investments Management Ltd (No 2) [2011] NSWCA 197 Commissioner of State Revenue v Challenger Listed Investments Ltd (No 2) [2011] VSCA 398 Commonwealth of Australia v Gretton [2008] NSWCA 117 Council of the City of Liverpool v Turano (No 2) [2009] NSWCA 176 Crest Homes Plc v Marks [1987] AC 829 Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373 Evans Shire Council v Richardson (No 2) [2006] NSWCA 61 Favotto Family Restaurants Pty Ltd v Chief Commissioner of State Revenue (No 2) [2020] NSWSC 519 Hammond v Scheinberg (2001) 52 NSWLR 49 Harman v Secretary of State for the Home Department [1983] 1 AC 280 Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435; [2005] VSCA 298 Herning v GWS Machinery Pty Ltd (No 2) [2005] NSWCA 375 Leichhardt Municipal Council v Green [2004] NSWCA 341 Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 Miwa Pty Ltd v Siantan Properties Pty Ltd (No 2) [2011] NSWCA 344 Prudential Assurance Co Ltd v Fountain Page Ltd [1991] 1 WLR 756 at 764; [1991] 3 All ER 878 Sanderson v Blyth Theatre Co [1903] 2 KB 533 Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 Sved v Council of the Municipality of Woollahra (1998) NSW ConvR 55-842 Turner v O'Bryan-Turner [2019] NSWSC 1340 Turner v O'Bryan-Turner [2021] NSWSC 5 Texts Cited: G.E. Dal Pont, Law of Costs (4th ed, 2018, LexisNexis Butterworths) Category: Costs Parties: Proceedings 2017/00080121 Owen John turner by his tutor Nicholas John Turner (First Plaintiff) Allawah Pastoral Pty Ltd (Second Plaintiff) Nicholas John Turner (Third Plaintiff) Angelena May O'Bryan in her capacity as the Executrix of the Estate of Wendy Joan O'Bryan-Turner (First Defendant) David John Turner (Second Defendant) Karl John Turner (Third Defendant) Registrar-General, Land and Property Information (Fourth Defendant) Proceedings 2019/00307439 Owen John Turner by his tutor Angelena May O'Bryan (Plaintiff) Nicholas John Turner (First Defendant) Allawah Pastoral Pty Ltd (Second Defendant) Representation: Counsel: