Amaca Pty Limited v Seltsam Pty Limited (No. 2) (Re: Donkin)
[2018] NSWDDT 3
•27 February 2018
Dust Diseases Tribunal
New South Wales
Medium Neutral Citation: Amaca Pty Limited v Seltsam Pty Limited (No. 2) (Re: Donkin) [2018] NSWDDT 3 Hearing dates: On the papers Date of orders: 27 February 2018 Decision date: 27 February 2018 Before: Judge D. Russell Decision: (1) Decline the application of the cross-claimant for the cross-defendant to pay costs from 5 October 2016 onwards on an indemnity basis.
(2) Decline the cross-claimant’s application for an order under s 98(4) of the Civil Procedure Act 2005.
(3) Order the cross-claimant to pay the cross-defendant’s costs of the determination of costs issues on the papers.Catchwords: COSTS – indemnity costs – Calderbank offer – whether offer was a genuine compromise – whether failure to accept offer was unreasonable Legislation Cited: Civil Procedure Act 2005 Cases Cited: Singapore Airlines Cargo Pty Limited v Principle International Pty Limited (No. 2) [2017] NSWCA 340 at [30] Category: Costs Parties: Amaca Pty Limited (cross-claimant)
Seltsam Pty Limited (cross-defendant)Representation: Counsel:
Solicitors:
J. Sheller (cross-claimant)
B. Ilkovski (cross-defendant)
Mills Oakley (cross-claimant)
Colin Biggers & Paisley (cross-defendant)
File Number(s): DDT 54/2016/1
Judgment
INTRODUCTION
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On 9 February 2018 I gave judgment for the cross-claimant (Amaca) against the cross-defendant (Seltsam) for $185,000, which was 50% of the damages and costs for which Amaca settled the claim brought against it by the late Mr Donkin. I ordered Seltsam to pay Amaca’s costs of the cross-claim and granted leave to the parties to seek different costs orders if so advised.
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The parties have filed written submissions on costs orders and agreed that the matter should be dealt with on the papers.
PROCEDURAL HISTORY
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Amaca filed a cross-claim against Seltsam on 4 April 2016. On 30 September 2016 Amaca served the affidavit of Mr Mellish dated 28 July 2016 and the affidavit of Mr Pickering dated 19 February 2015, which had been tendered as evidence in the Noonan proceedings.
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On 4 October 2016 Amaca served a Calderbank offer on Seltsam, and this offer expired on 31 October 2016.
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On 22 December 2017 Amaca served an affidavit of Mr Pickering dated 23 April 2014 together with a s 67 Notice.
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As the hearing of the cross-claim approached Amaca served more material.
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Amaca served a Notice to Admit Facts and Authenticity of Documents dated 16 January 2018, to which were attached copies of four advertisements. Those advertisements had already been provided to Seltsam under cover of letter dated 20 May 2016.
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On 31 January 2018 Amaca served the evidence from the Noonan proceedings upon which it proposed to rely.
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On 1 February 2018 Amaca served the affidavit of Bernard James Hoens dated 31 January 2018.
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On 1 February 2018 Amaca served the statement of Mr Rodney Donkin, the brother of the late plaintiff.
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Shortly prior to the hearing Amaca prepared a Tender Bundle which included copies of a number of advertisements, over and above the four which had been provided on earlier dates.
THE CALDERBANK LETTER
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The letter dated 4 October 2016 from Amaca to Seltsam offered to accept a 20% contribution from Seltsam towards the settlement sum of $370,000 inclusive of costs. It noted that Seltsam had already paid $3,700 towards that amount, pursuant to the determination of a Contributions Assessor.
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The letter was expressed to be a Calderbank letter, and Seltsam accepts in its written submissions that the offer was a genuine compromise, and that the offer was more favourable than the terms of the judgment given by the Tribunal on 9 February 2018, in that Amaca offered to accept 20% but the judgment was for Seltsam to pay 50%.
APPLICABLE PRINCIPLES
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Given that Seltsam has conceded that the Calderbank offer was a genuine compromise by Amaca, the only question to be decided is whether it was unreasonable for Seltsam not to accept the offer at the time it expired – Singapore Airlines Cargo Pty Limited v Principle International Pty Limited (No. 2) [2017] NSWCA 340 at [30].
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Amaca submitted that it was unreasonable for Seltsam not to accept Amaca’s offer for the following reasons:
By the time of the service of the Calderbank offer, Amaca had served much of its evidence which demonstrated that Hardys Hardware was a Seltsam-tied store for a significant period of Mr Donkin’s exposure to asbestos;
Seltsam had adequate time to satisfy itself as to whether the Hardys Hardware store was so connected to it;
The offer made was low and well below Seltsam’s liability if it were established that Hardys Hardware was a Seltsam-tied store, even if it was the case that that relationship ended in 1970;
Seltsam could have ascertained at the time that the offer expired that it had no evidence to offer in opposition to the contention that Hardys Hardware was an exclusive supplier of its products.
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Seltsam submitted that the Tribunal, in coming to its conclusion that Hardys Hardware was a stockist of Wunderlich asbestos cement flat sheets during the period that Mr Donkin purchased asbestos products from the store, relied upon the statement of Rodney Donkin, the evidence in the Noonan proceeding and the rest of the newspaper advertisements, all of which were served well after the Calderbank offer expired.
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Seltsam submitted that because the Tribunal relied in part on evidence supplied well after the Calderbank offer had expired, it was not unreasonable for Seltsam not to accept the offer on the state of the liability evidence as at October 2016.
CONSIDERATION
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Amaca bore the onus of proof on its cross-claim against Seltsam. No matter that Seltsam had its own resources from which it could have collected evidence to be tendered, as a party to litigation Seltsam was entitled to look at the evidence served by Amaca from time to time and make an assessment of whether a particular offer was reasonable or not.
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If it could be said that based upon only the evidence served by October 2016, it was unreasonable for Seltsam not to accept the Amaca offer, then it would be appropriate to order indemnity costs against Seltsam.
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As the submissions for Seltsam point out, the ultimate finding of the Tribunal involved acceptance and analysis of all of the evidence tendered by Amaca, including the important evidence served well after the Calderbank offer expired and just before the hearing.
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The evidence tendered by Amaca on the hearing of the cross-claim was collected in the Amaca Tender Bundle which was Exhibit CCX1. The documentary evidence commenced at p 25 of the Tender Bundle and concluded on p 145. Thus there were 81 pages of documentary evidence in the Tender Bundle. The material which had been served by Amaca by October 2016 consisted of:
the affidavit of Mr Mellish dated 28 July 2016 – four pages of the Tender Bundle;
the affidavit of Mr Pickering dated 19 February 2015 – four pages of the Tender Bundle;
a small proportion of the 26 pages of advertisements contained in the Tender Bundle at pp 120-145.
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By volume in the Tender Bundle, Amaca had provided about 15% of its documentary case to Seltsam, by the time of the expiry of the Calderbank letter.
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My finding is that on the basis of the material which Amaca had served on Seltsam by the time the Calderbank offer expired, it could not be said that the failure to accept the offer was unreasonable on the part of Seltsam. For that reason I decline to award indemnity costs.
SECTION 98(4) OF THE CIVIL PROCEDURE ACT 2005
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In its written submissions Amaca sought a general order for liberty to apply for costs to be assessed under s 98(4) of the Civil Procedure Act 2005 which provides:
“In particular, at any time before costs are referred for assessment, the court may make an order to the effect that the party to whom costs are to be paid is to be entitled to:
(a) costs up to, or from, a specified stage of the proceedings,
(b) a specified proportion of the assessed costs, or
(c) a specified gross sum instead of assessed costs, or
(d) such proportion of the assessed costs as does not exceed a specified amount.”
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Seltsam did not respond to this part of the Amaca submissions. It is unclear why Amaca sought an order for liberty to apply for costs to be assessed in accordance with s 98(4), as such leave is not required. Further, it was not made plain just what sort of costs order was to be sought under s 98(4).
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This Tribunal has no expertise in assessing costs, and given that there is a regime for a specialised costs assessor to deal with matters of this nature, it would be desirable for the parties to use that regime, as they do in just about every other case before the Tribunal. Both litigants are commercial entities, which are involved in case after case in the Tribunal, and one would hope that commercial common sense would lead to an agreement as to costs rather than a formal assessment.
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For those reasons I decline the application under s 98(4).
ORDERS
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My orders are:
Decline the application of the cross-claimant for the cross-defendant to pay costs from 5 October 2016 onwards on an indemnity basis.
Decline the cross-claimant’s application for an order under s 98(4) of the Civil Procedure Act 2005.
Order the cross-claimant to pay the cross-defendant’s costs of the determination of costs issues on the papers.
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Decision last updated: 27 February 2018
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