Tulloch (deceased) v Braybon & ors (No 3) [2010] NSWSC 1065

New South Wales Supreme Court

CITATION : Tulloch (deceased) v Braybon & ors (No 3) [2010] NSWSC 1065

HEARING DATE(S) : 23 June 2010 JURISDICTION : Equity Division Expedition List

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 23 June 2010

DECISION : Variation of orders made on 17 June 2010

CATCHWORDS : PROCEDURE – Costs

LEGISLATION CITED : (NSW) Uniform Civil Procedure Rules 2005 r 42.15A

CATEGORY : Consequential orders

John Archibald Tulloch (since deceased) PARTIES : Raymond Patrick Braybon (first defendant) Racing Information Services Australia Pty Ltd (second defendant) Racing Victoria Limited (third defendant)

FILE NUMBER(S) : SC 09/287768

COUNSEL : I M Neil SC w LM Wilson (plaintiff) P T Taylor SC w S Blount (first defendants)

Lumleys Solicitors (plaintiff) SOLICITORS : Taylor & Whitty (first defendant) Allens Arthur Robinson (second defendant) Minter Ellison (third defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EXPEDITION LIST

BRERETON J

Wednesday, 23 June 2010

2009/287768 John Archibold Tulloch (since deceased) v Raymond Patrick Braybon & Ors JUDGMENT (ex tempore) 1 HIS HONOUR: Consequent upon the judgment given and orders provisionally made on 17 June 2010, a number of issues remain for determination. 2 The first is whether a declaration should be made to the effect of order 1 of that date, and/or whether it should be varied to specify a date from which the co-ownership it describes commenced. Neither party suggests that no such declaration should be made. The plaintiff proposes, and the defendant does not oppose, that a date be inserted specifying from when the co-ownership commenced. As a result of the argument, it appears that there is a reasonable consensus that the appropriate date would be 23 April 2007. 3 Although I have some reservations about including such details in a declaration where the precise issue has not been addressed and resolved in the case, it does seem to be a necessary consequence of my conclusions that the co-ownership commenced between 2 April 2007, when Mr Braybon served the registration papers, and 18 May 2007, when they were ultimately registered. Given the consensus which has emerged, and for the purpose of quieting potential future disputes, I will insert a reference to 23 April. 4 I would also extend the declaration to cover the entitlements to the prize money held by the third defendant Racing Victoria Limited, and make an order for distribution of that money (to which Racing Victoria has, as previously recorded, submitted). 5 The other remaining issue is the question of costs. Prima facie, the defendant having succeeded, there would be, as provisionally included in order 2 of 17 June, an order that the plaintiff pay the defendants' costs. The question is whether some other order is appropriate, having regard to the history of offers made before and during the proceedings which now emerges. 6 As recorded in paragraph 22 of the principal judgment, the criminal proceedings concluded with the acquittal of Mr Braybon on 14 November 2008. On 7 January 2009, Mr Tulloch again accused Mr Braybon of having stolen the horse. On 11 February 2009, Mr Tulloch's solicitors made an offer to Mr Braybon's solicitors in the following terms: 1. The after all costs associated with the racehorse, being the costs associated with obtaining, maintaining, training and racing the horse are met, the winnings generated by the horse are distributed 50/50 between our client and your client. 2. That Mr Jack Tulloch be registered as the managing owner, but your client will retain a 50% share in the racehorse.