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Amcor Ltd v Barnes (Costs Ruling)

Amcor Ltd v Barnes (Costs Ruling)

Case [2020] VSC 585 11 September 2020

Costs

Calderbank Offer

Indemnity Basis Costs

Apportionment of Costs

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2007 8181

AMCOR LIMITED (ACN 000 017 372) & ORS (ACCORDING TO THE SCHEDULE ATTACHED)	Plaintiffs
v
TREVOR MARK BARNES & ORS (ACCORDING TO THE SCHEDULE ATTACHED)	Defendants

(BY ORIGINAL PROCEEDING)

AUSTRALIAN CORRUGATED BOX CO PTY LTD (FORMERLY ACHILLA PTY LTD) (ACN 104 489 581) & ANOR (ACCORDING TO THE SCHEDULE ATTACHED)	Plaintiffs by Counterclaim
v
ACN002693843 BOX PTY LTD (ACN 002 693 843) & ANOR (ACCORDING TO THE SCHEDULE ATTACHED)	Defendants by Counterclaim

(BY COUNTERCLAIM)

ORORA LIMITED (FORMERLY AMCOR PACKAGING (AUSTRALIA) PTY LTD) (ACN 004 275 165)	Cross-Claimant
v
AUSTRALIAN CORRUGATED BOX CO PTY LTD (FORMERLY ACHILLA PTY LTD) (ACN 104 489 581) & ORS (ACCORDING TO THE SCHEDULE ATTACHED)	Defendants to Cross-Claim

(BY CROSS-CLAIM)

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JUDGE:	SLOSS J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 May 2020 (post-reasons chronology provided by Holihan parties on 23 June 2020; further email correspondence from the Holihan parties dated 19 June 2020 (seeking liberty to apply to enforce the undertaking given by the Amcor parties on 11 December 2007); response from the Amcor parties by email dated 13 July 2020)
DATE OF RULING:	11 September 2020
CASE MAY BE CITED AS:	Amcor Ltd & Ors v Barnes & Ors (Costs Ruling)
MEDIUM NEUTRAL CITATION:	[2020] VSC 585

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PRACTICE AND PROCEDURE – Costs – Court’s discretion as to costs – Where counterclaim and cross-claim heard separately from trial of the main proceeding – Where Calderbank offer was made by letter in advance of counterclaim being filed – Where Calderbank offer lapsed by effluxion of time due to non- acceptance – Whether costs of counterclaim and cross-claim should be awarded on an indemnity basis – Whether Calderbank offer was unreasonably rejected – Not unreasonable for defendants not to accept offer– Lack of clarity and detail in Calderbank offer – No special costs order made.

PRACTICE AND PROCEDURE – Costs – Court’s discretion as to costs – Where plaintiffs by counterclaim successful on some (but not all) causes of action pursued at trial – Where defendants by counterclaim sought apportionment of costs on counterclaim to reflect mixed success – Whether successful plaintiffs’ costs on counterclaim should be apportioned or discounted to reflect issues on which they failed – Where single order would more readily facilitate taxation than would approaching costs by issues – Single order made apportioning plaintiffs’ costs on counterclaim – No dispute as to costs to be ordered on cross-claim.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs by Counterclaim/Defendants to Cross-Claim	Mr S J Maiden QC and Ms E L Murphy	Mills Oakley
For the Defendants by Counterclaim/Cross-Claimant	Ms C M McCudden	Gilbert + Tobin

TABLE OF CONTENTS

Background......................................................................................................................................... 1

Reasons for decision delivered on 28 November 2016............................................................ 1
Ruling No 1.................................................................................................................................... 3
Ruling No 2.................................................................................................................................... 4
Dispute regarding the ‘Amcor Displays jobs’................................................................. 4
The Mines Report was delivered on 12 November 2008............................................... 5
Orders made on 7 December 2018.................................................................................... 5

Ruling No 3.................................................................................................................................... 6

Hearing as…

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 Amcor Ltd v Barnes (Costs Ruling)

Details

AGLC: Amcor Ltd v Barnes (Costs Ruling) [2020] VSC 585
Case: [2020] VSC 585
Decision Date: 11 September 2020

CaseChat Overview and Summary

Amcor Limited sought relief against Barnes and others in relation to alleged breaches of contract and other torts. The dispute between the parties included a counterclaim and cross-claim, which were heard separately from the main proceeding. The primary issues in the case were the determination of the costs associated with the counterclaim and cross-claim, and the appropriate basis for those costs. Additionally, the court had to consider whether the defendants had unreasonably rejected a Calderbank offer and if the plaintiffs' costs on the counterclaim should be apportioned due to mixed success.

The court began by examining the nature of the Calderbank offer, which was made by letter before the counterclaim was filed. The offer lapsed due to non-acceptance, and the court considered whether it was unreasonable for the defendants not to accept it. The court found that the lack of clarity and detail in the Calderbank offer contributed to the defendants' decision not to accept it. Therefore, it was not unreasonable for the defendants not to accept the offer, and no special costs order was made regarding the Calderbank offer. The court then turned to the issue of apportioning the plaintiffs' costs on the counterclaim due to mixed success. The court determined that a single order would more readily facilitate taxation than approaching the costs by issues, and thus, made a single order apportioning the plaintiffs' costs on the counterclaim.

The court concluded that the defendants' decision not to accept the Calderbank offer was not unreasonable due to the lack of clarity and detail in the offer. Additionally, the court found that it was appropriate to apportion the plaintiffs' costs on the counterclaim due to their mixed success, and made a single order to that effect. No dispute existed as to the costs to be ordered on the cross-claim. The court exercised its discretion in determining the appropriate costs for the counterclaim and cross-claim, taking into account the Calderbank offer and the mixed success of the plaintiffs on the counterclaim.

Orders