Prosser v Eagle [2002] NSWSC 787

Prosser v Eagle [2002] NSWSC 787

Indemnity costs were refused because the plaintiff's case was not hopeless, the relevant offer was not a formal offer of compromise under Pt 52A r 22 of the Rules, and the proceedings were not an abuse of process or improper conduct of litigation. The plaintiff was ordered by consent to repay $156,119 with interest,...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
15 August 2002
Procedural Posture
Professional Negligence Proceedings; Judgment on Costs / After Verdict for the Defendants at the Second Trial, With Costs Reserved
Outcome
Application for indemnity costs refused; plaintiff ordered to pay defendants' costs and repay $156,119 with interest; constructive trust declared over net proceeds of sale of the Wanniassa property to the extent of the repayment amount.
Legal Topics
['party and Party Costs' 'indemnity Costs' 'offer of Compromise' 'stay of Proceedings' 'repayment of Moneys Paid Pending Appeal' 'constructive Trust' 'unjust Enrichment' 'subrogation']
['practice and Procedure' 'costs' 'restitution' 'equity'] ['party and Party Costs' 'indemnity Costs' 'offer of Compromise' 'stay of Proceedings' 'repayment of Moneys Paid Pending Appeal' 'constructive Trust' 'unjust Enrichment' 'subrogation']

Source-derived case record

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Procedural Posture

Professional Negligence Proceedings; Judgment on Costs / After Verdict for the Defendants at the Second Trial, With Costs Reserved

Legal Issues

  1. 1 ["Whether any part of the defendants' costs should be paid on an indemnity basis." 'Whether the plaintiff should repay moneys paid to her pending appeal, with interest.' 'Whether proceeds of sale of 126 Langdon Avenue, Wanniassa, ACT should be treated as held on a constructive trust in favour of the defendants.']

Ratio Decidendi

Indemnity costs were refused because the plaintiff's case was not hopeless, the relevant offer was not a formal offer of compromise under Pt 52A r 22 of the Rules, and the proceedings were not an abuse of process or improper conduct of litigation. The plaintiff was ordered by consent to repay $156,119 with interest, and the net sale proceeds of the Wanniassa property were declared to be held on constructive trust for the defendants to the extent of that repayment because the plaintiff and Kim Prosser had benefited from the discharge of the mortgage using moneys to which the plaintiff was ultimately not entitled.

Court Disposition

Application for indemnity costs refused; plaintiff ordered to pay defendants' costs and repay $156,119 with interest; constructive trust declared over net proceeds of sale of the Wanniassa property to the extent of the repayment amount.

Orders

  • ["The plaintiff is to pay the defendants' costs of the proceedings, including the costs of the first trial before Bruce J and the costs of the application for a stay of proceedings reserved by the Court of Appeal by its order of 8 January 1999." 'By consent, the plaintiff is to repay to the defendants an amount of...