Barecall Pty Ltd v Hoban (No 2) - [2010] NSWCA 304

New South Wales

Court of Appeal

CITATION: Barecall Pty Ltd v Hoban & Ors (No 2) [2010] NSWCA 304

HEARING DATE(S): On the papers

JUDGMENT DATE:
12 November 2010

JUDGMENT OF: Allsop P at 1; Macfarlan JA at 17; Handley AJA at 18

DECISION: 1. Set aside the orders of the Court made on 3 December 2009 in relation to the costs of proceedings below and in lieu thereof order that the plaintiff pay the first, second, third and fifth defendants' costs of the proceedings.
2. The appellant pay the respondents' costs of the appeal, with the exception of the argument as to costs of the proceedings below and in respect of the costs of that matter, the first, second, third and fifth respondents' pay the appellant's costs.

CATCHWORDS: COSTS – indemnity costs – offer of compromise – reasonableness of rejection

LEGISLATION CITED: Uniform Civil Procedures Rules 2005, r 20.26 (2)

CATEGORY: Consequential orders

CASES CITED: Barecall Pty Ltd v Hoban [2010] NSWCA 269

PARTIES: Barecall Pty Limited ACN 060 527 095 (Appellant)
David Hoban (First Respondent)
Deon Russell Harvey (Second Respondent)
Anthony Rossi (Third Respondent)
Radoslav Spadina (Fourth Respondent)
Jason Lussick (Fifth Respondent)

FILE NUMBER(S): CA 2006/257180

COUNSEL: Mr D E Baran (Appellant)
Mr G Blank (First Respondent)
Mr M Evans with Ms C Sclavos (Second, Third & Fifth Respondents)

SOLICITORS: Schreuder Partners Lawyers (Appellant)
Goodman Law (First Respondent)
Lathams Lawyers (Second & Third Respondents)
In Person (Fourth Respondent)
Medcalf Grant Lawyers (Fifth Respondent)

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): 2006/3278

LOWER COURT JUDICIAL OFFICER: Ward J

LOWER COURT DATE OF DECISION: 16 October 2009

LOWER COURT MEDIUM NEUTRAL CITATION: Barecall Pty Limited v Hoban [2009] NSWSC 1104

2006/257180

ALLSOP P
MACFARLAN JA
HANDLEY AJA
Friday 12 November 2010

BARECALL PTY LTD v HOBAN & ORS (No 2)

Judgment

1 ALLSOP P: On 12 October 2010 the Court made orders dismissing the appeal, subject to dealing with the matter of costs, both below and on appeal: Barecall Pty Ltd v Hoban [2010] NSWCA 269.

2 The parties had not provided the Court with relevant material with which to deal with the arguments of the appellant on the primary judge’s costs orders. The primary judge made orders for indemnity costs in favour of the first to third and fifth defendants. Her Honour’s reasons of 3 December 2009 set out why she refused to award indemnity costs from the commencement of the proceedings, and why she awarded indemnity costs from 1 November 2007 in relation to the fifth defendant and from

February 2008 (on the evidence 8 February) in relation to the first, second and third defendants. (The plaintiff and the fourth defendant reached an accommodation.) Her Honour failed to be precise about the orders in relation to the first, second and third defendants, but it is implicit from her Honour’s reasons that her Honour made an order for costs on a party-party basis prior to 8 February 2008 and on an indemnity basis…

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] NSWCA 304
Decision Date: 12 November 2010

CaseChat Overview and Summary

Barecall Pty Ltd (the appellant) appealed a decision of the primary judge regarding the costs of proceedings below. The dispute concerned an offer of compromise made by the first, second, third, and fifth defendants (the respondents) to the plaintiff, Barecall Pty Ltd. The Court of Appeal was required to determine whether the primary judge erred in ordering the respondents to pay the appellant's costs of the proceedings below, despite the respondents having made an offer of compromise.

The central legal issue was whether the primary judge had correctly applied the principles governing the award of indemnity costs in circumstances where an offer of compromise had been made and rejected. Specifically, the court considered whether the rejection of the offer of compromise was unreasonable, thereby justifying an order for the plaintiff to pay the defendants' costs of the proceedings below.

The Court of Appeal found that the primary judge had erred in his assessment of the reasonableness of the rejection of the offer of compromise. The court held that the offer was a genuine offer to settle the litigation on terms that were not demonstrably less favourable than the ultimate outcome. Consequently, the court concluded that the plaintiff's rejection of the offer was unreasonable, and the primary judge should have ordered the plaintiff to pay the defendants' costs of the proceedings below.

The Court of Appeal set aside the orders of the Court made on 3 December 2009 in relation to the costs of the proceedings below and ordered that the plaintiff pay the first, second, third, and fifth defendants' costs of those proceedings. The appellant was ordered to pay the respondents' costs of the appeal, with the exception of the argument as to costs of the proceedings below. In respect of the costs of that matter, the first, second, third, and fifth respondents were ordered to pay the appellant's costs.

Orders

Orders of the court

1. Set aside the orders of the Court made on 3 December 2009 in relation to the costs of proceedings below and in lieu thereof order that the plaintiff pay the first, second, third and fifth defendants' costs of the proceedings.

2. The appellant pay the respondents' costs of the appeal, with the exception of the argument as to costs of the proceedings below and in respect of the costs of that matter, the first, second, third and fifth respondents' pay the appellant's costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Barecall Pty Ltd v Hoban & Ors (No 2) [2010] NSWCA 304
HEARING DATE(S):	On the papers
JUDGMENT DATE:	12 November 2010
JUDGMENT OF:	Allsop P at 1; Macfarlan JA at 17; Handley AJA at 18
DECISION:	1. Set aside the orders of the Court made on 3 December 2009 in relation to the costs of proceedings below and in lieu thereof order that the plaintiff pay the first, second, third and fifth defendants' costs of the proceedings. 2. The appellant pay the respondents' costs of the appeal, with the exception of the argument as to costs of the proceedings below and in respect of the costs of that matter, the first, second, third and fifth respondents' pay the appellant's costs.
CATCHWORDS:	COSTS – indemnity costs – offer of compromise – reasonableness of rejection
LEGISLATION CITED:	Uniform Civil Procedures Rules 2005, r 20.26 (2)
CATEGORY:	Consequential orders
CASES CITED:	Barecall Pty Ltd v Hoban [2010] NSWCA 269
PARTIES:	Barecall Pty Limited ACN 060 527 095 (Appellant) David Hoban (First Respondent) Deon Russell Harvey (Second Respondent) Anthony Rossi (Third Respondent) Radoslav Spadina (Fourth Respondent) Jason Lussick (Fifth Respondent)
FILE NUMBER(S):	CA 2006/257180
COUNSEL:	Mr D E Baran (Appellant) Mr G Blank (First Respondent) Mr M Evans with Ms C Sclavos (Second, Third & Fifth Respondents)
SOLICITORS:	Schreuder Partners Lawyers (Appellant) Goodman Law (First Respondent) Lathams Lawyers (Second & Third Respondents) In Person (Fourth Respondent) Medcalf Grant Lawyers (Fifth Respondent)
LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	2006/3278
LOWER COURT JUDICIAL OFFICER:	Ward J
LOWER COURT DATE OF DECISION:	16 October 2009
LOWER COURT MEDIUM NEUTRAL CITATION:	Barecall Pty Limited v Hoban [2009] NSWSC 1104