V & V Properties P/L v CSR Building Products Ltd (No 2)
[2009] QSC 240
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- Unreported Judgment
- V & V Properties P/L v CSR Building Products Ltd (No 2)[2009] QSC 240
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V & V Properties P/L v CSR Building Products Ltd (No 2)[2009] QSC 240
V & V Properties P/L v CSR Building Products Ltd (No 2)[2009] QSC 240
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO: | |
Trial Division | |
PROCEEDING: | Costs order |
ORIGINATING COURT: | |
DELIVERED ON: | 21 August 2009 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 18, 19 June 2009 |
JUDGE: | Dutney J |
ORDER: | The defendant pay the plaintiff’s costs of and incidental to the action to be assessed on the standard basis. |
CATCHWORDS: | PROCEDURE - COSTS - GENERAL RULE - COST FOLLOW THE EVENT - COSTS OF WHOLE ACTION - GENERALLY Where plaintiff seeks indemnity costs-Where plaintiff’s solicitors wrote a letter to defendant’s solicitors marked “without prejudice save as to costs”-Whether defendant given sufficient time to consider offer BHP Coal Pty Ltd & Ors v O & K Orenstein & Koppel AG [2009] QSC 64 Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602 |
COUNSEL: | S Couper QC for the plaintiff, defendant by counterclaim D A Savage SC with S Brown for the defendant, plaintiff by counterclaim |
SOLICITORS: | HWL Ebsworth for the plaintiff, defendant by counterclaim Gadens Lawyers for the defendant, plaintiff by counterclaim |
[1] Judgment in this action was given on 3 August 2009 in favour of the plaintiff.
[2] The action concerned the entitlement of a plaintiff to terminate a contract for the sale of land because of the non-fulfilment of what I found to be a contingent condition relating to the supply of electricity.
[3] The plaintiff seeks indemnity costs on the basis of correspondence exchanged prior to and at the time of the commencement of the proceedings by originating application.
[4] The plaintiff’s solicitors wrote to the defendant’s solicitors on 23 March 2009 prior to the filing of the originating application in what amounted to a demand before proceedings.
[5] The application was subsequently filed and on 1 April 2009 the plaintiff’s solicitors wrote a letter to the defendant’s solicitors marked “without prejudice save as to costs”.
[6] The letter was apparently received by the defendant’s solicitors at 4.37pm on 1 April 2009 and required a response by 10am on 2 April 2009. In effect the letter required the defendant to concede the plaintiff’s case in exchange for which the plaintiff would waive any entitlement to costs.
[7] The plaintiff submits that notwithstanding that the offer was not one made in accordance with the Uniform Civil Procedure Rules, the offer was made against the background of the untenable position taken by the defendant and therefore warranted an order for indemnity costs.
[8] On the other hand, the defendant submits that on no view could the period of time allowed to consider the offer be considered reasonable, particularly in light of the fact that some matters to which reference was made in the judgement concerning the negotiations for the contract and the plaintiff’s capacity to pay the purchase price were not dealt with in the material filed in support of the application. The solicitors then acting for the defendant were not the solicitors who acted in the course of the transaction and thus it was submitted that the defendant’s position was reasonably taken, having regard for the need to investigate the claims being made. It was submitted that the time permitted for acceptance of the offer did not allow for any investigation of the plaintiff’s claim.
[9] Indemnity costs are not available merely for the asking. There are many judicial statements concerning the awarding of indemnity costs and the principles are not in doubt. The circumstances were discussed in Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602 at [17]:
“…whenever a Calderbank offer is made, and is enlivened by a result more favourable to the offeror and less favourable to the offeree, it is necessary to look at all the surrounding circumstances and not simply the fact that an offer was made and rejected and the offeree has achieved a less favourable result than the offer. It is necessary to look at the genuineness of the offer, whether it was realistic, the point of time at which it was made and that whether, in all the circumstances, it was such a reasonable offer as required the offeree to give careful consideration to it. If, in all the circumstances, it was unreasonable for the offeree to reject the offer and not accept it then there are strong grounds for the Court ordering indemnity costs on the basis that the offeror has made a fair and reasonable attempt to resolve the proceeding and has given the offeree the opportunity at a relevant point of time in the proceeding to consider the reasonableness of the offer.”
[10] In BHP Coal Pty Ltd & Ors v O & K Orenstein & Koppel AG [2009] QSC 64 at [30], McMurdo J said:
“… What is clear is that an award of indemnity costs is exceptional, and that it is not to occur simply because the successful party will be out of pocket or because, by reference to the outcome, it can be seen that an argument should not have been advanced.”
[11] In all the circumstances of this case, I am not satisfied that it is appropriate to make an award of indemnity costs. In arriving at that conclusion, I have had regard to the fact that the plaintiff’s application had been filed only four days before the offer was made and the whole of the plaintiff’s case had not been revealed at the time of the offer. The offer was received just prior to the close of business on one day and only open until 10am on the following morning. That period of time did not, in my view, constitute a reasonable opportunity for the offer to be considered and the defendant to receive advice in relation to the matter.
[12] In the circumstances, I order that the defendant pay the plaintiff’s costs of and incidental to the action to be assessed on the standard basis.