Lucas v Salman (No 2) [2022] NSWSC 1527

Supreme Court New South Wales

Medium Neutral Citation: Lucas v Salman (No 2) [2022] NSWSC 1527 Hearing dates: 25 October and 1 November 2022 (written submissions); 2 November 2022 Date of orders: 2 November 2022 Decision date: 09 November 2022 Jurisdiction: Equity Before: Kunc J Decision: Defendants to pay plaintiffs' costs Catchwords: COSTS — Party/Party — Exceptions to general rule that costs follow the event — Whether there should be no order as to costs where plaintiffs succeeded on limited issues — Calderbank offer — No issue of principle Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Brady v Mikan (No 2) [2022] NSWSC 1320 Lucas v Salman [2022] NSWSC 1301 Perry v Perry (No 2) [2022] NSWSC 1462 Category: Costs Parties: Paul Lucas (First Plaintiff) Karl Lucas (Second Plaintiff) John Salman (First Defendant) Jodie Daniele Salman (Second Defendant) Joanne Kylie Lee (Third Defendant) Paul Michael Salman (Fourth Defendant) Representation: Counsel: JE Armfield (Plaintiffs) L Ellison SC with S Clemmett (Defendants)

Solicitors: Maurice Blackburn (Plaintiffs) Sydney Law Group (Defendants) File Number(s): 2020/106879 Publication restriction: No

Judgment

Introduction 1. After considering the parties' written submissions and a short further hearing, on 2 November 2022 the Court entered judgment against the Second, Third and Fourth Defendants for a total sum of $246,192.49 (the Judgment Sum) and ordered that the defendants pay the plaintiffs' costs of the proceedings. A number of other orders were made which were not controversial. This judgment sets out my reasons for the costs order. 2. The Court delivered its principal judgment in these proceedings on 28 September 2022: Lucas v Salman [2022] NSWSC 1301 (the Principal Judgment). These reasons are to be read, and assume familiarity, with the Principal Judgment. Defined terms in the Principal Judgment have the same meaning in these reasons. 3. As at the earlier hearing, Mr JE Armfield of Counsel appeared for the plaintiffs. Mr L Ellison of Senior Counsel appeared with Ms S Clemmett of Counsel for the defendants. 4. It will be recalled that the plaintiffs asserted four causes of action: 1. Breach of contract; 2. Estoppel; 3. Family provision orders in relation to George's estate; and 4. Family provision orders in relation to Jill's estate. 1. The plaintiffs succeeded only in relation to the estoppel claim, and then also only in part insofar as it related to George's superannuation of $211,892.84. 2. The plaintiffs' straightforward submission was that they had succeeded, such that according to Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 42.1, costs should follow the event. The plaintiffs therefore sought an order that the defendants pay the plaintiffs' entire costs of the proceedings. 3. For their part, the defendants submitted that the very substantial majority of the work done by both parties had been directed to claims upon which the plaintiffs had failed. The defendants therefore submitted that, in the exercise of the Court's discretion, the orders that would best do justice between the parties were that: 1. Each party bear their own costs up until 22 October 2022; and 2. From 22 October 2022 (being the date on which the defendants served a Calderbank offer (the Offer)), the plaintiffs pay the defendants' costs on the indemnity basis. 1. I will consider each of the orders sought by the defendants in turn.