Barrett v Lets Go Adventures Pty Ltd (No. 2) - [2016] NSWDC 367

District Court

New South Wales

Amendment notes

Medium Neutral Citation: Barrett v Lets Go Adventures Pty Ltd (No. 2) [2016] NSWDC 367
Hearing dates: 16 December 2016
Date of orders: 22 December 2016
Decision date: 22 December 2016
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Plaintiff’s application for indemnity costs refused.
(2) For the reasons set out in paragraph 38 of this judgment, the defendant is to pay the plaintiff’s costs of all applications before the court today, including the application for indemnity costs.

Catchwords: COSTS – indemnity costs - Calderbank offer made during trial for admission of liability and trial to proceed on assessment only – plaintiff later recovered substantial damages - whether offer valid or a genuine compromise – whether indemnity costs should alternatively be granted pursuant to s 341 Legal Practitioners Act 2004 (NSW) – application for indemnity costs refused
Legislation Cited: Civil Liability Act 2002 (NSW), Part 8
Civil Procedure Act 2005 (NSW), ss 60 and 98
Legal Profession Act 2004 (NSW), s 341
Uniform Civil Procedure Rules 2005 (NSW), rr 42.4, 42.5, 42.13 and 42.14
Cases Cited: Barrett v Lets Go Adventures Pty Ltd [2016] NSWDC 345
Botany Bay Council v Latham (No 2) [2013] NSWCA 450
Boyle v Coppock & Anor; Ek v Coppock & Anor [2014] NSWDC 244
Calderbank v Calderbank [1975] 3 All ER 333
Commonwealth of Australia v Gretton [2008] NSWCA 117
eInduct Systems Pty Ltd v 3D Safety Services Pty Ltd (2015) 90 NSWLR 451
Glover v Australian Ultra Concrete Floors Pty Ltd [2003] NSWCA 80
Illawarra Hotel Co Pty Ltd v Walton Construction Pty Ltd (No 2) [2013] NSWCA 211
Jones v Dunkel (1959) 101 CLR 298
Lowe v Lowe (No 3) [2015] NSWSC 1800
Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116
Oshlack v Richmond River Council (1998) 193 CLR 72
Port Stephens Council v Theodorakis (No 2) (2006) 67 NSWLR 299
Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208
Sorbello v South Western Sydney Local Health Network (No 2) [2016] NSWSC 1496
Zisis v Knighton [2008] NSWCA 42
Category: Costs
Parties: Plaintiff: Dean Barrett
Defendant: Lets Go Adventures Pty Ltd
Representation:
Counsel:
Plaintiff: Mr C Hart
Defendant: Mr M T McCulloch SC
Solicitors:
Plaintiff: Bale Boshev Lawyers
Defendant: Colin Biggers & Paisley

File Number(s): 2015/12071
Publication restriction: None

Judgment

These are proceedings for personal injury which, after a ten day hearing in the Newcastle District Court, resulted in judgment for the plaintiff: Barrett v Lets Go Adventures Pty Ltd [2016] NSWDC 345.
Following calculations of damages and interest, and an application by the defendant for a stay, I made the following orders on 16 December 2016:

Judgment for the plaintiff in the sum of $638,144.

Execution of judgment be stayed on condition that the defendant file and serve a notice of appeal on or before 25 February 2017 and prosecute any such appeal with due diligence.

Judgment on costs reserved.

The plaintiff also brought an application for indemnity costs based on the following:

An…

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: [2016] NSWDC 367
Decision Date: 22 December 2016

CaseChat Overview and Summary

The plaintiff, Barrett, sued Lets Go Adventures Pty Ltd for damages resulting from injuries sustained during a guided adventure activity. The matter was heard in the Supreme Court of New South Wales. The central dispute was the extent of the defendant's liability and the amount of damages to be awarded, given the plaintiff's recovery of substantial damages following an initial Calderbank offer.

The court had to determine whether the Calderbank offer was a genuine attempt at compromise or a valid offer for admission of liability with the trial continuing on the issue of damages only. Additionally, the court had to consider whether indemnity costs should be awarded under section 341 of the Legal Practitioners Act 2004 (NSW) in light of the defendant's refusal to accept the Calderbank offer. The court considered the nature of the offer, the stage at which it was made, and the subsequent recovery of substantial damages by the plaintiff.

The court found that the Calderbank offer was not a genuine attempt at compromise, as it was made during the trial and the plaintiff had already incurred significant costs. The court rejected the notion that the offer was an admission of liability with a trial on assessment only, given the plaintiff's substantial recovery. Consequently, the court refused the plaintiff's application for indemnity costs. However, the court did order the defendant to pay the plaintiff's costs of all applications before the court, including the application for indemnity costs, as detailed in paragraph 38 of the judgment.

Orders

Orders of the court

(1) Plaintiff’s application for indemnity costs refused.

(2) For the reasons set out in paragraph 38 of this judgment, the defendant is to pay the plaintiff’s costs of all applications before the court today, including the application for indemnity 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.

Medium Neutral Citation:	Barrett v Lets Go Adventures Pty Ltd (No. 2) [2016] NSWDC 367
Hearing dates:	16 December 2016
Date of orders:	22 December 2016
Decision date:	22 December 2016
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Plaintiff’s application for indemnity costs refused. (2) For the reasons set out in paragraph 38 of this judgment, the defendant is to pay the plaintiff’s costs of all applications before the court today, including the application for indemnity costs.
Catchwords:	COSTS – indemnity costs - Calderbank offer made during trial for admission of liability and trial to proceed on assessment only – plaintiff later recovered substantial damages - whether offer valid or a genuine compromise – whether indemnity costs should alternatively be granted pursuant to s 341 Legal Practitioners Act 2004 (NSW) – application for indemnity costs refused
Legislation Cited:	Civil Liability Act 2002 (NSW), Part 8 Civil Procedure Act 2005 (NSW), ss 60 and 98 Legal Profession Act 2004 (NSW), s 341 Uniform Civil Procedure Rules 2005 (NSW), rr 42.4, 42.5, 42.13 and 42.14
Cases Cited:	Barrett v Lets Go Adventures Pty Ltd [2016] NSWDC 345 Botany Bay Council v Latham (No 2) [2013] NSWCA 450 Boyle v Coppock & Anor; Ek v Coppock & Anor [2014] NSWDC 244 Calderbank v Calderbank [1975] 3 All ER 333 Commonwealth of Australia v Gretton [2008] NSWCA 117 eInduct Systems Pty Ltd v 3D Safety Services Pty Ltd (2015) 90 NSWLR 451 Glover v Australian Ultra Concrete Floors Pty Ltd [2003] NSWCA 80 Illawarra Hotel Co Pty Ltd v Walton Construction Pty Ltd (No 2) [2013] NSWCA 211 Jones v Dunkel (1959) 101 CLR 298 Lowe v Lowe (No 3) [2015] NSWSC 1800 Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116 Oshlack v Richmond River Council (1998) 193 CLR 72 Port Stephens Council v Theodorakis (No 2) (2006) 67 NSWLR 299 Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 Sorbello v South Western Sydney Local Health Network (No 2) [2016] NSWSC 1496 Zisis v Knighton [2008] NSWCA 42
Category:	Costs
Parties:	Plaintiff: Dean Barrett Defendant: Lets Go Adventures Pty Ltd
Representation:	Counsel: Plaintiff: Mr C Hart Defendant: Mr M T McCulloch SC Solicitors: Plaintiff: Bale Boshev Lawyers Defendant: Colin Biggers & Paisley
File Number(s):	2015/12071
Publication restriction:	None