Bird v Bird (No 5) [2012] NSWSC 734

Supreme Court New South Wales

Medium Neutral Citation: Bird v Bird (No 5) [2012] NSWSC 734 Decision date: 27 June 2012 Jurisdiction: Equity Division Before: Rein J Decision: 1. The plaintiff pay the defendants' costs of the proceedings on a party-party basis. 2. The first and second defendants pay the plaintiff's costs of the first cross claim on a party-party basis, such costs to be offset against the costs payable by the plaintiff under order 1. 3. The first and second defendants pay on a party-party basis the third defendant costs of the third cross claim in relation to the third defendant's role as solicitor. 4. Save as set out in orders 2 and 3, there be no order as to the costs of the cross claims. Catchwords: PROCEDURE - costs - depriving a successful party from order for costs - where defendants failed on factual assertions but were successful on the issue in respect of which the facts were asserted - where proven breaches of duty were not causative of loss - plaintiff has not succeeded on a clearly dominant or separable issue and not an appropriate case for apportionment of costs to specific aspects of evidence

PROCEDURE - costs - conduct of parties - misconduct in proceedings - where findings made that a party was not a credible witness and admissions made by a party in cross examination - departure from general rule not warranted

PROCEDURE - costs - offer of compromise under UCPR - where offer of compromise deals with costs - offer not in accordance with UCPR r 20.6(2) but can be effective as a Calderbank offer

PROCEDURE - costs - order for costs on indemnity basis for non-acceptance of Calderbank offer - where offer involved prospect of an application to reduce costs to unspecified degree - where considerable costs incurred were on the plaintiff's case brought about by conduct of the defendants - where a separate offer is made by another defendant together with a number of incorrect assertions - in context of an open offer by the other defendants which it was not unreasonable for the plaintiff not to accept - where offer does not specify which party should pay what amounts - non-acceptance by plaintiff of offers not shown to be unreasonable Legislation Cited: Family Provision Act 1982 Uniform Civil Procedure Rules 2005 Cases Cited: Alexander v Australian Community Pharmacy Authority (No 3) [2010] FCA 506 Bishop v New South Wales (Supreme Court of New South Wales, Dunford J, 17 November 2000, unreported) Calderbank v Calderbank [1975] 3 All ER 333 Cretazzo v Lombardi (1975) 13 SASR 4 Donald Campbell & Co Ltd v Pollak [1972] AC 732 Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373 Frisbo Holdings Pty Ltd v Austin Australia Pty Ltd (No 2) [2010] NSWSC 298 James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 Jones v Bradley (No 2) [2003] NSWCA 258 Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 Leichhardt Municipal Council v Green [2004] NSWCA 341 McKerlie v New South Wales (No 2) [2000] NSWSC 1159 Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344 Old v McInnes and Hodgkinson [2011] NSWCA 410 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 State of New South Wales v Stanley [2007] NSWCA 330 Trustee for the Salvation Army (NSW) Property Trust & Anor v Becker & Anor (No 2) [2007] NSWCA 194 Category: Consequential orders Parties: Deborah Michelle Bird (Plaintiff) Warrick Lindsay Bird (First defendant) Rodney David Bird (Second defendant) Herbert James Cannington (Third defendant) Mona Ethel Bird (Fourth defendant) Representation: Counsel: J S Drummond (Plaintiff) D E Grieve QC and M K Condon (First and second defendants) C Champion (Third defendant) Solicitors: Wilson & Co Lawyers (Plaintiff) Hills Solicitors (First and second defendants) Middletons (Third defendant) File Number(s): SC 2005/262267