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Adams v Groegor (No. 2)

Adams v Groegor (No. 2)

Case [2012] NSWDC 30 28 March 2012

Costs

Indemnity Costs

Limitation Periods

Civil Litigation & Procedure

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District Court

New South Wales

Medium Neutral Citation: Adams v Groegor (No. 2) [2012] NSWDC 30
Hearing dates: 14 February and 9 March 2012
Decision date: 28 March 2012
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Defendant's application for indemnity costs for the hearing of the claim brought by the plaintiff dismissed.
(2) The plaintiff's application for indemnity costs in relation to the defendant's cross-claim dismissed.
(3) Each party bear his own costs of their respective applications.
(4) Costs orders (2) and (4) made on 23 December 2011 confirmed in all respects, save for the costs of relisting the matter before Balla DCJ on 22 July 2011, for which the defendant is to pay the plaintiff's costs occasioned by the relisting of the matter due to the defendant's non-compliance with the timetable.

Catchwords: COSTS - application by both the plaintiff and defendant for indemnity costs in proceedings where both the claim and the cross-claim failed - whether the claims were "hopeless" - whether the plaintiff could rely upon, and sever, a term in an offer of compromise to settle the cross-claim on the basis of each party paying his own costs.
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 3 and 56
Defamation Act 2005 (NSW), s 40
District Court Rules 1970 (NSW), Pt 39A r 25(6)
Trade Practices Act 1974 (Cth), ss 45D and 52
Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 42.1 and 42.6
Cases Cited: Adams v Groegor [2011] NSWDC 213
Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd (No 2) [2009] NSWCA 12
Calderbank v Calderbank [1975] 3 All ER 333
Dean v Stockland Property Management Pty Ltd (No 2) [2011] NSWCA 141
Facton Ltd (formerly G-Star Raw Denim KFT) v Seo [2011] FCA 344
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Limited (1988) 81 ALR 397
Fowdh v Fowdh [1993] NSWCA 100
G M Holden Ltd v Paine (No 3) [2011] FCA 693
Grbavac v Hart [1997] 1 VR 154
Hancock v Arnold; Dodd v Arnold (No 2) [2009] NSWCA 19
J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers, WA Branch (No 2) (1993) 46 IR 301
John Goss Projects Pty Ltd v Thiess Watkins White Constructions Ltd (in liq) [1995] 2 Qd R 591
Kemp v Ryan [2012] ACTCA 12
Liverpool City Council v Estephan [2009] NSWCA 161
LVMH Watch & Jewellery Australia Pty Ltd v Lassanah (Costs) [2011] NSWCA 407
M T Associates Pty Ltd v Aqua-Max Pty Ltd (No 3) [2000] VSC 163
Magenta Nominees Pty Ltd v Richard Ellis (Western Australia) Pty Ltd (Federal Court of Australia, Spender, French and Lee JJ, 29 August 1995)
Mahony v Watson [2003] NSWCA 259
Mizikovsky v Queensland Television Ltd (No 3) [2011] QSC 375
Old v McInnes [2011] NSWCA 410
Perry v Comcare [2006] 150 FCR 319
Tickell v Trifleska Pty Ltd (1990) 25 NSWLR 353
Trustee for the Salvation Army (NSW) Property Trust t/as Salvation Army v Becker (No 2) [2007] NSWCA 194
Yorke…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Adams v Groegor (No. 2)

Details

AGLC: Adams v Groegor (No. 2) [2012] NSWDC 30
Case: [2012] NSWDC 30
Decision Date: 28 March 2012

CaseChat Overview and Summary

In the Federal Circuit Court, Adams, the plaintiff, brought a claim against Groegor, the defendant, seeking damages for breach of contract. Groegor responded with a cross-claim, and both parties sought indemnity costs. The court was tasked with deciding whether the claims were "hopeless" and if the plaintiff could rely upon, and sever, a term in an offer of compromise to settle the cross-claim on the basis of each party paying their own costs.

The court found that neither party's claims were hopeless. The plaintiff's claim was not without merit, as there were factual disputes that needed to be resolved. Similarly, the defendant's cross-claim had some basis, as there were questions about the validity of certain terms in the contract. The court also held that the plaintiff could not rely upon, and sever, the term in the offer of compromise because it was not a binding agreement. The offer was conditional and did not address the cross-claim.

Consequently, the court dismissed both parties' applications for indemnity costs for the hearing of the claim and the defendant's cross-claim. The court also ordered that each party bear their own costs for their respective applications. The court confirmed the costs orders made on 23 December 2011, except for the costs of relisting the matter before Balla DCJ on 22 July 2011, for which the defendant was to pay the plaintiff's costs due to the defendant's non-compliance with the timetable.

Orders

Orders of the court

(1) Defendant's application for indemnity costs for the hearing of the claim brought by the plaintiff dismissed.

(2) The plaintiff's application for indemnity costs in relation to the defendant's cross-claim dismissed.

(3) Each party bear his own costs of their respective applications.

(4) Costs orders (2) and (4) made on 23 December 2011 confirmed in all respects, save for the costs of relisting the matter before Balla DCJ on 22 July 2011, for which the defendant is to pay the plaintiff's costs occasioned by the relisting of the matter due to the defendant's non-compliance with the timetable.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

Adams v Groegor (No. 2) [2012] NSWDC 30

Cases Citing This Decision

No citing cases yet.

Cases Cited

Kemp v Ryan [2012] ACTCA 12
Citation 1 (Para 1)

…capable of being accepted, thereby creating a binding contract. This is particularly the case with an offer to settle legal proceedings: Kemp v Ryan [2012] ACTCA 12 at [12]-[13] per Penfold, Burns and Marshall JJ. While the Court of Appeal in Kemp v Ryan was considering a Calderbank offer, the same must be the ca…
Adams v Groegor [2011] NSWDC 213
Citation 2 (Para 1)

…Both parties to these proceedings bring applications to vary the costs orders I made in my judgment dated 23 December 2011 ( Adams v Groegor [2011] NSWDC 213). These were proceedings for damages for breach of contract, pleaded in the alternative as a claim for misleading and deceptive conduct. A cross-claim brought…
Old v McInnes and Hodgkinson [2011] NSWCA 410
Citation 3 (Para 1)

…When the matter was before me for argument on 14 February, I directed Mr Tancred's attention to Old v McInnes [2011] NSWCA 410, and also to the question of whether or not the offer was an offer to settle the proceedings entirely, or whether the portion relating to the cross-claim was in some way severable. I have n…
LVMH Watch and Jewellery Australia Pty Limited v Michael Lassanah (Costs) [2011] NSWCA 407
Citation 4 (Para 1)

…at the time, and not to raise issues of this nature solely when issues as to costs arise: LVMH Watch & Jewellery Australia Pty Ltd v Lassanah (Costs) [2011] NSWCA 407 at [22]. I also note that the "fresh step" rule requires parties to take objection promptly to asserted failures to comply with the Rules. I also rej…
Mizikovsky v Queensland Television Ltd (No 3) [2011] QSC 375
Citation 5 (Para 1)

…s likely to win a case can obtain little assistance from the offer of compromise system, as Dalton J in Mizikovsky v Queensland Television Ltd (No 3) [2011] QSC 375 at [93] notes.…
GM Holden Ltd v Paine (No 3) [2011] FCA 693
Citation 6 (Para 1)

…l Court ( Perry v Comcare [2006] 150 FCR 319 at 55-57; Facton Ltd (formerly G-Star Raw Denim KFT) v Seo [2011] FCA 344; G M Holden Ltd v Paine (No 3) [2011] FCA 693), as well as to authority of long standing in Queensland ( John Goss Projects Pty Ltd v Thiess Watkins White Constructions Ltd (in liq) [1995] 2 Qd R…
International Litigation Partners Pte Ltd v Chameleon Mining NL (No 2) [2011] NSWCA 141
Citation 7 (Para 1)

…In Dean v Stockland Property Management Pty Ltd (No 2) [2011] NSWCA 141 at [34] the Court of Appeal stated:…
Facton Ltd v Seo [2011] FCA 344
Citation 8 (Para 1)

…mber of decisions to this effect of the Federal Court ( Perry v Comcare [2006] 150 FCR 319 at 55-57; Facton Ltd (formerly G-Star Raw Denim KFT) v Seo [2011] FCA 344; G M Holden Ltd v Paine (No 3) [2011] FCA 693), as well as to authority of long standing in Queensland ( John Goss Projects Pty Ltd v Thiess Watkins…
Liverpool City Council v Estephan [2009] NSWCA 161
Citation 9 (Para 1)

…fer of compromise in relation to the cross-claim ("pay its own costs") may be inappropriate, the meaning is clear ( Liverpool City Council v Estephan [2009] NSWCA 161 at [75]) and the word "defendant", as defined by s 3 of the Civil Procedure Act clearly identifies the cross-defendant, no objection is taken to thes…
Hancock v Arnold; Dodd v Arnold (No 2) [2009] NSWCA 19
Citation 10 (Para 1)

…the dispute: Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd (No 2) [2009] NSWCA 12 at [19]; Hancock v Arnold; Dodd v Arnold (No 2) [2009] NSWCA 19 at [23].…
Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd (No 2) [2009] NSWCA 12
Citation 11 (Para 1)

…it is not a genuine attempt to reach a negotiated settlement of the dispute: Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd (No 2) [2009] NSWCA 12 at [19]; Hancock v Arnold; Dodd v Arnold (No 2) [2009] NSWCA 19 at [23].…
Trustee for the Salvation Army (NSW) Property Trust v Becker (No 2) [2007] NSWCA 194
Citation 12 (Para 1)

…tement to this effect was made in the offer of compromise (cf Trustee for the Salvation Army (NSW) Property Trust t/as Salvation Army v Becker (No 2) [2007] NSWCA 194). As the Court of Appeal notes in Dean v Stockland Property Management Pty Ltd (No 2) at [19], the making of an invalid offer of compromise does not…
Perry v Comcare [2006] FCA 33
Citation 13 (Para 1)

…The ACT Court of Appeal in Kemp v Ryan referred to a number of decisions to this effect of the Federal Court ( Perry v Comcare [2006] 150 FCR 319 at 55-57; Facton Ltd (formerly G-Star Raw Denim KFT) v Seo [2011] FCA 344; G M Holden Ltd v Paine (No 3) [2011] FCA 693), as well as to authority of long standing in…
Mahony v Watson [2003] NSWCA 259
Citation 14 (Para 1)

…I am aware of only one case where an offer of compromise has been asserted to contain "severable" components. In Mahony v Watson [2003] NSWCA 259 at [57]-[62], the Court of Appeal held that the rejection by the trial judge of three offers of compromise, two of which exceeded the amount recovered, amounted to an err…
MT Associates Pty Ltd v Aqua-Max Pty Ltd (No 3) [2000] VSC 163
Citation 15 (Para 1)

…ions Ltd (in liq) [1995] 2 Qd R 591 at 595) and in Victoria ( Grbavac v Hart [1997] 1 VR 154 at 160; M T Associates Pty Ltd v Aqua-Max Pty Ltd (No 3) [2000] VSC 163 at [56]). An offer to accept only part of an offer of compromise, or a Calderbank offer, would not be an offer at all, but at best a counter offer.…
Fowdh v Fowdh [1993] NSWCA 100
Citation 16 (Para 1)

…ts components of these offers of compromise. (The principal reason was that the case at trial was different to the case as pleaded (see Fowdh v Fowdh [1993] NSWCA 100 at 10-11), which the Court of Appeal considered impermissible).…
Yorke v Lucas [1985] HCA 65
Citation 17

…kell v Trifleska Pty Ltd (1990) 25 NSWLR 353 Trustee for the Salvation Army (NSW) Property Trust t/as Salvation Army v Becker (No 2) [2007] NSWCA 194 Yorke v Lucas (1985) 158 CLR 661 Texts Cited: - Category: Costs Parties: Plaintiff: Kurt Raymond Adams Defendant: Peter Franz Joachim Groegor Representation: Plaintiff: M…
[1997] VSC 37 [1997] VSC 37
Citation 18 (Para 1)

…land ( John Goss Projects Pty Ltd v Thiess Watkins White Constructions Ltd (in liq) [1995] 2 Qd R 591 at 595) and in Victoria ( Grbavac v Hart [1997] 1 VR 154 at 160; M T Associates Pty Ltd v Aqua-Max Pty Ltd (No 3) [2000] VSC 163 at [56]). An offer to accept only part of an offer of compromise, or a Calder…

Legislation Cited

Uniform Civil Procedure Rules 2005 (NSW) 20.26, 42.1, 42.6
4 mentions (from Para 1)
Civil Procedure Act 2005 (NSW) 3, 56
3 mentions (from Para 1)
Trade Practices Act 1974 (Cth) 45D, 52
3 mentions (from Para 1)
Defamation Act 2005 (TAS) 40
2 mentions (from Para 1)

Medium Neutral Citation:	Adams v Groegor (No. 2) [2012] NSWDC 30
Hearing dates:	14 February and 9 March 2012
Decision date:	28 March 2012
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Defendant's application for indemnity costs for the hearing of the claim brought by the plaintiff dismissed. (2) The plaintiff's application for indemnity costs in relation to the defendant's cross-claim dismissed. (3) Each party bear his own costs of their respective applications. (4) Costs orders (2) and (4) made on 23 December 2011 confirmed in all respects, save for the costs of relisting the matter before Balla DCJ on 22 July 2011, for which the defendant is to pay the plaintiff's costs occasioned by the relisting of the matter due to the defendant's non-compliance with the timetable.
Catchwords:	COSTS - application by both the plaintiff and defendant for indemnity costs in proceedings where both the claim and the cross-claim failed - whether the claims were "hopeless" - whether the plaintiff could rely upon, and sever, a term in an offer of compromise to settle the cross-claim on the basis of each party paying his own costs.
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 3 and 56 Defamation Act 2005 (NSW), s 40 District Court Rules 1970 (NSW), Pt 39A r 25(6) Trade Practices Act 1974 (Cth), ss 45D and 52 Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 42.1 and 42.6
Cases Cited:	Adams v Groegor [2011] NSWDC 213 Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd (No 2) [2009] NSWCA 12 Calderbank v Calderbank [1975] 3 All ER 333 Dean v Stockland Property Management Pty Ltd (No 2) [2011] NSWCA 141 Facton Ltd (formerly G-Star Raw Denim KFT) v Seo [2011] FCA 344 Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Limited (1988) 81 ALR 397 Fowdh v Fowdh [1993] NSWCA 100 G M Holden Ltd v Paine (No 3) [2011] FCA 693 Grbavac v Hart [1997] 1 VR 154 Hancock v Arnold; Dodd v Arnold (No 2) [2009] NSWCA 19 J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers, WA Branch (No 2) (1993) 46 IR 301 John Goss Projects Pty Ltd v Thiess Watkins White Constructions Ltd (in liq) [1995] 2 Qd R 591 Kemp v Ryan [2012] ACTCA 12 Liverpool City Council v Estephan [2009] NSWCA 161 LVMH Watch & Jewellery Australia Pty Ltd v Lassanah (Costs) [2011] NSWCA 407 M T Associates Pty Ltd v Aqua-Max Pty Ltd (No 3) [2000] VSC 163 Magenta Nominees Pty Ltd v Richard Ellis (Western Australia) Pty Ltd (Federal Court of Australia, Spender, French and Lee JJ, 29 August 1995) Mahony v Watson [2003] NSWCA 259 Mizikovsky v Queensland Television Ltd (No 3) [2011] QSC 375 Old v McInnes [2011] NSWCA 410 Perry v Comcare [2006] 150 FCR 319 Tickell v Trifleska Pty Ltd (1990) 25 NSWLR 353 Trustee for the Salvation Army (NSW) Property Trust t/as Salvation Army v Becker (No 2) [2007] NSWCA 194 Yorke…