Amanda Duncan-Strelec v Thomas Richard Tate - [2010] NSWSC 1256

CITATION: Amanda Duncan-Strelec & Ors v Thomas Richard Tate & Ors [2010] NSWSC 1256

HEARING DATE(S): 27.10.10

JUDGMENT DATE :
27 October 2010

JUDGMENT OF: Nicholas J

DECISION: Pars 26-30

CATCHWORDS: COSTS – application for indemnity costs – whether offer of settlement was an offer of compromise under the rules – whether offer operated as a Calderbank offer – whether intention shown – whether offer a genuine compromise or invitation to surrender - UCPR 20.26(3)(a)

LEGISLATION CITED: Uniform Civil Procedure Rules 2005

CATEGORY: Principal judgment

CASES CITED: Dean v Stockland Property Management Pty Ltd (No 2) [2010] NSWCA 141
Kain v Mobbs (No 2) [2008] NSWSC 599
Leichhardt Municipal Council v Green [2004] NSWCA 341
Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368
Uniting Church in Australia Property Trust (NSW) t/as Northaven Retirement Village v Takacs (No 2) [2008] NSWCA 172

PARTIES: Amanda Duncan-Strelec – first plaintiff
David Strelec – second plaintiff
Dunlec Pty Ltd – third plaintiff
Thomas Richard Tate – first defendant
Elizabeth Ruth Tate – second defendant
Wamego Pty Ltd – third defendant

FILE NUMBER(S): SC 06/260312

COUNSEL: P Lange - plaintiffs
A Lo Surdo – first and second defendants
Wamego Pty Ltd - no appearance

SOLICITORS: In person – first plaintiff
In person – second plaintiff
David Strelec – third plaintiff
Hickey Lawyers – first and second defendants
Wamego Pty Ltd – no appearance

LOWER COURT JURISDICTION: Supreme Court

SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Nicholas J

27 October 2010

06/260312 Amanda Duncan-Strelec & Ors v Thomas Richard Tate & Ors

JUDGMENT ex tempore

Before me is the first and second defendants' (the defendants’) application to determine the final orders in these proceedings including an order for costs. The terms of the orders sought are:

“1. The proceedings be dismissed.

2. The plaintiffs and each of them are to pay the first and second defendants’ costs of the proceedings:

3. Order 2 of the orders of the Court made on 23 January 2007 be dissolved.

4. The sum of $247,000 and any interest on that sum held pursuant to Order 3(a) of the orders of the Court made on 23 January 2007 be released to the first and second defendants or otherwise in accordance with their written direction.

5. The 6 Forestry Bonds held pursuant to Order 3(b) of the orders of the Court made on 23 January 20 [sic] be released to the first and second defendants or otherwise in accordance with their written direction.”

2 The plaintiffs oppose the making of these orders. I turn first to the question of costs.

3 The defendants successfully defended the plaintiffs' claim for damages and other relief arising from the failure of a joint venture arrangement for the development of real estate for the reasons stated in my judgment of 6 August 2010. Their costs…

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.

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Details

Case: [2010] NSWSC 1256
Decision Date: 27 October 2010

CaseChat Overview and Summary

The applicant, Amanda Duncan-Strelec, sought indemnity costs against the respondent, Thomas Richard Tate, following a dispute over a property settlement. The matter was before the Supreme Court of New South Wales, with the primary judge assessing the merits of the application under the Uniform Civil Procedure Rules. The crux of the case was whether the offer of settlement made by the respondent constituted a compromise offer under the rules, specifically a Calderbank offer, and whether it was a genuine attempt to resolve the dispute or merely an invitation to surrender.

The court examined the nature of the offer, the circumstances surrounding it, and the intentions behind it to determine if it qualified as a Calderbank offer. A Calderbank offer is a specific type of compromise offer that, if rejected without good reason, can lead to an order for indemnity costs. The court considered whether the offer was genuinely intended as a compromise and whether it operated as such. This involved scrutinising the timing of the offer, its terms, and the context in which it was made.

The Supreme Court found that the offer did not constitute a Calderbank offer as it was not a genuine attempt to settle the dispute. The court held that the offer was more akin to an invitation to surrender rather than a genuine compromise. The offer was not made with the intention to resolve the dispute amicably but was instead a strategic move in the litigation process. Consequently, the application for indemnity costs was dismissed, and the applicant was not entitled to recover her costs from the respondent under UCPR 20.26(3)(a).

The court made an order that the applicant's application for indemnity costs be dismissed, with each party to bear their own costs of the application.

Orders