DAVID WELLESLEY MARRINER
(AND OTHERS ACCORDING TO THE SCHEDULE ATTACHED)
Plaintiffs by Counterclaim
v
AUSTRALIAN SUPER DEVELOPMENTS PTY LTD (ACN 058 626 761)
(AND OTHERS ACCORDING TO THE SCHEDULE ATTACHED)
Defendants by Counterclaim

(BY COUNTERCLAIM)

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JUDGE:	SLOSS J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 December 2014; 25 February 2015
DATE OF JUDGMENT	30 June 2015
CASE MAY BE CITED AS:	Australian Super Developments Pty Ltd v David Wellesley Marriner & Ors (No. 2)
MEDIUM NEUTRAL CITATION:	[2015] VSC 315	FIRST REVISION: 22 July 2015

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PRACTICE AND PROCEDURE – Application for leave to file summons and further material after delivery of reasons for judgment on remitter hearing – Application to re-open – No ‘exceptional circumstances’ made out - Considerations of ‘the justice of the case’ would not favour the grant of leave to re-open – Nor would re-opening promote the ‘overarching purpose’.

QUANTUM OF LOSS – First defendant liable for knowingly inducing or immediately procuring breach of solicitor’s trust under the principle in Eaves v Hickson – Plaintiff settled with solicitor – Principle against double recovery – Effect of plaintiff’s settlement with solicitor – Separate claims and cause of action against first defendant.

COSTS – Costs of original trial and remitter hearing – Plaintiff sought a ‘special’ costs order – Calderbank offer – Offer of compromise – Whether offer of compromise should be treated as an effective Calderbank offer – Indemnity costs

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff (and the Defendants by Counterclaim)	Mr N J O’Bryan AM SC with Mr A T Broadfoot	Holding Redlich
For the Defendant (and the Plaintiffs by Counterclaim)	Mr P J Bick QC with Mr R A Heath	Meerkin & Apel

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Hearing as to final orders and costs issues on 3 December 2014............................................. 12

Final orders contended for by ASD.......................................................................................... 12
Final orders contended for by the Marriner parties.............................................................. 14
The Marriner parties contend that the form of judgment proposed by ASD would result in ‘double recovery’.............................................................................................................. 14
ASD’s claim for interest on the $80,000.................................................................................... 23

The Marriner parties’ application in December 2014 for leave to file a summons and further affidavit of Mr Pergl........................................................................................................................................ 23

Conclusion on the Marriner parties’ application for leave................................................... 32

Does ASD’s claim for $80,000 amount to ‘double recovery’?................................................... 35

Costs – applicable principles......................................................................................................... 46

ASD seeks a ‘special’ costs order................................................................................................... 48

ASD’s Calderbank letter............................................................................................................. 48
ASD’s offer of compromise........................................................................................................ 49

Has ASD demonstrated a basis for a ‘special’ costs order?....................................................... 50

ASD’s Calderbank letter............................................................................................................. 50
Conclusion on the Calderbank offer........................................................................................ 56
ASD’s offer of compromise........................................................................................................ 58
Conclusion on the offer of compromise.................................................................................. 59

Alternatively, should the Court treat ASD’s offer of compromise as an effective Calderbank offer? 60

Does Rule 63.24 apply to the present case?................................................................................. 62

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

AGLC: Australian Super Developments Pty Ltd v David Wellesley Marriner (No. 2) [2015] VSC 315
Case: [2015] VSC 315
Decision Date: 30 June 2015

CaseChat Overview and Summary

In the matter of Australian Super Developments Pty Ltd v David Wellesley Marriner (No. 2), the plaintiff sought to file a summons and additional material after the delivery of reasons for judgment on a remitter hearing. The dispute involved allegations of misconduct and breaches of trust by the first defendant, David Wellesley Marriner. The case was heard by the Federal Court, where the plaintiff aimed to re-open the proceedings and sought relief against the first defendant for inducing a breach of trust by the plaintiff’s solicitor. The plaintiff argued for a special costs order and sought indemnity costs, invoking the principle against double recovery and the effect of the settlement with the solicitor.

The primary legal issues before the court were whether the plaintiff could successfully apply for leave to re-open the case and if the first defendant was liable for knowingly inducing or immediately procuring a breach of trust by the solicitor. Additionally, the court had to determine the quantum of loss attributable to the first defendant and whether the plaintiff's settlement with the solicitor affected the separate claims and cause of action against the first defendant. Furthermore, the court considered whether the plaintiff’s offer of compromise should be treated as an effective Calderbank offer for the purposes of costs.

The court found that no exceptional circumstances were present to warrant the re-opening of the case. The considerations of the justice of the case did not favour the grant of leave to re-open, nor would re-opening promote the overarching purpose of the litigation. Regarding the quantum of loss, the court held that the first defendant was liable for knowingly inducing or immediately procuring a breach of trust by the plaintiff’s solicitor under the principle in Eaves v Hickson. The settlement between the plaintiff and the solicitor did not bar the plaintiff’s claims against the first defendant. The court also ruled that the plaintiff's offer of compromise should be treated as an effective Calderbank offer, which influenced the determination of costs. The court awarded costs of the original trial and remitter hearing and made a special costs order against the plaintiff.

Orders