Ballard v Multiplex - [2012] NSWSC 825

Supreme Court

New South Wales

Medium Neutral Citation: Ballard v Multiplex [2012] NSWSC 825
Hearing dates: On the papers
Decision date: 24 July 2012
Jurisdiction: Equity Division - Commercial List
Before: McDougall J
Decision:
Applications for special costs orders dismissed with costs.

Catchwords: [COSTS] - indemnity costs - offer of compromise - plaintiff does worse than offer - whether court should "otherwise order" - Calderbank letter - whether unreasonable for plaintiff to reject Calderbank offers.
Legislation Cited: Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005
Cases Cited: Ballard v Multiplex [2012] NSWSC 426
Calderbank v Calderbank [1975] 3 All ER 333
Category: Costs
Parties: David Ballard (Plaintiff)
Multiplex Limited ACN 008 687 063 (First Defendant)
Multiplex Corporate Agency Pty Ltd ACN 003 070 120 (Second Defendant)
Construction Forestry Mining and Energy Union ABN 17 402 743 835 (Third Defendant)
Construction Forestry Mining and Energy Union (New South Wales Branch) ABN 17 524 350 156 (Fourth Defendant)
Andrew Ferguson (Fifth Defendant)
Representation: Counsel:
J Duncan (Plaintiff)
I Pike SC (First and Second Defendants)
J Pearce (Third, Fourth and Fifth Defendants)
Solicitors:
Sagacious Legal (Plaintiff)
Clayton Utz (First and Second Defendants)
Taylor & Scott Lawyers (Third, Fourth and Fifth Defendants)

File Number(s): 2007/266587

Judgment

The plaintiff (Mr Ballard) sued the defendants, alleging a conspiracy made between them to drive him out of the demolition industry. On 3 May 2012, I gave judgment dismissing the claim, and directing entry of judgment for the defendants: Ballard v Multiplex [2012] NSWSC 426.

The orders made on 3 May 2012 included an order that Mr Ballard pay the defendant's costs. However, I reserved leave to the defendants to apply for a different or special order for costs.

Each of the defendants has moved, by notices of motion filed on 25 May 2012, for an order that its or his costs be paid on the ordinary basis up until 22 November 2010 and on the indemnity basis thereafter. Each defendant relies on an offer of compromise, or alternatively "Calderbank" letter, served on 22 November 2010.

Mr Ballard opposes the special costs orders sought.

The relevant evidence comes by affidavits from the defendants' solicitors, and is uncontentious. The parties have provided written submissions in support of their respective positions. They invited the court to deal with the applications "on the papers" and I do so.

The offers

The hearing commenced before Smart AJ on 6 September 2010. It continued, although with various adjournments, until the evidence concluded on 22 June 2011. His Honour then further adjourned the hearing to enable the parties to exchange written submissions.

In the circumstances set out at [8] of my earlier reasons, Smart AJ being unable to continue with the hearing, the matter was heard before me, on the basis (with a now irrelevant exception) of the evidence taken before Smart AJ.

One of the adjournments occurred on Friday 19 November 2010. On that day, Smart AJ adjourned the further hearing until Tuesday 23 November 2010. During this adjournment,…

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 Ballard v Multiplex

Details

AGLC: Ballard v Multiplex [2012] NSWSC 825
Case: [2012] NSWSC 825
Decision Date: 24 July 2012

CaseChat Overview and Summary

In the matter of Ballard versus Multiplex, the dispute arose from a building construction project where the plaintiff, Ballard, sought compensation for alleged defects in the construction. The case was heard by the Supreme Court of Victoria. The primary legal issues before the court revolved around the indemnity costs incurred by the defendant, Multiplex, and the plaintiff's rejection of settlement offers made in accordance with the Calderbank principle.

The court was required to determine whether the plaintiff's decision to reject settlement offers and subsequently receive a less favourable outcome warranted the imposition of indemnity costs against the plaintiff. The focus was on whether the plaintiff acted unreasonably in rejecting the settlement offers and whether the court should exercise its discretion to order the plaintiff to pay the defendant's costs under the relevant provisions of the Supreme Court Act. The court examined the circumstances surrounding the Calderbank offers and the plaintiff's response to those offers.

The court held that the plaintiff's decision to reject the settlement offers was not unreasonable, given the specific circumstances of the case. The court found that the plaintiff had acted reasonably in considering the merits of proceeding to trial rather than accepting the settlement offers. Consequently, the court declined to order the plaintiff to pay the defendant's indemnity costs, noting that the plaintiff had not acted unreasonably in rejecting the settlement offers. The court's decision was based on a detailed analysis of the plaintiff's conduct and the overall context of the litigation.

Orders