Legal Research
Cases
Bird v Ford (No 2)

Bird v Ford (No 2)

Case [2013] NSWSC 429 29 April 2013

Costs

Limitation Periods

Offers of Compromise

Civil Litigation & Procedure

Type to search within this case.

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Bird v Ford (No 2) [2013] NSWSC 429
Hearing dates: On papers
Decision date: 29 April 2013
Jurisdiction: Common Law
Before: Schmidt J
Decision:
1. The plaintiffs pay the defendants' costs on the ordinary basis to 11 August 2012 and thereafter on an indemnity basis.
2. The defendants pay the plaintiffs' costs of the motion for leave to tender the affidavit of Mr Davidson.

Catchwords: PROCEDURE - costs - departing from the general rule - order for costs on indemnity basis - Calderbank offer - offers of compromise - was there a genuine offer of compromise - was it unreasonable for the plaintiffs to have refused the offer - orders made
Legislation Cited: Uniform Civil Procedure Rules 2005
Cases Cited: Bird v Ford [2013] NSWSC 264
Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] VSCA 298; (2005)13 VR 435
Hobartville Stud Pty Ltd v Union Insurance Co Ltd (1991) 25 NSWLR 358
Leichhardt Municipal Council v Green [2004] NSWCA 341
Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344
Townsend v Townsend (No. 2) [2001] NSWCA 145
Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368
Category: Costs
Parties: Vrede Jane Bird (First Plaintiff)
Gordon Phillip Bird (Second Plaintiff)
David Clifton Ford t/as Emil Ford & Co (First Defendant)
Gary Cedric Pritchard t/as Emil Ford & Co (Second Defendant)
Representation: Counsel:
Mr DE Baran (Plaintiffs)
Mr G Craddock SC (Defendants)
Solicitors:
John Stonham & Co (Plaintiffs)
Mullane & Lindsay (Defendants)

File Number(s): 2010/232539
Publication restriction: None

Judgment

Judgment was given for the defendants on 28 March 2013 (see Bird v Ford [2013] NSWSC 264). The plaintiffs failed to establish either the negligence they alleged against their former solicitor, Mr Ford or his alleged misleading and deceptive conduct. The usual order as to costs under the Uniform Civil Procedure Rules 2005 is that they follow the event (see Rule 42.1). It was common ground, however, that the plaintiffs should have the costs of the defendants' motion, filed on the second day of the hearing in relation to the late service of Mr Davidson's affidavit. The defendants otherwise sought an indemnity costs order in their favour, following upon the plaintiffs' rejection of various offers of settlement which they had made. The plaintiffs opposed such orders being made in the defendants' favour, even though they did not better any of the offers they rejected, at trial.

The defendants had made a Calderbank offer on 7 December 2010 and two offers of compromise under the Rules on 23 March 2011 and 10 August 2012. The hearing commenced on 26 November 2012.

The Calderbank offer was made on the basis that the defendants would waive some $10,000 of the costs which the plaintiffs had been ordered to pay them in District Court proceedings; that there be a verdict for the defendants, with no order as to costs; and that a deed…

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 Bird v Ford (No 2)

Details

AGLC: Bird v Ford (No 2) [2013] NSWSC 429
Case: [2013] NSWSC 429
Decision Date: 29 April 2013

CaseChat Overview and Summary

The case of Bird v Ford (No 2) was heard by the Supreme Court of New South Wales. The dispute involved the plaintiffs, Bird, who were seeking an order for costs on an indemnity basis against the defendants, Ford. The plaintiffs argued that the defendants had made an offer of compromise which was unreasonable to refuse, and thus, the plaintiffs should be awarded costs on an indemnity basis. The defendants, however, contended that the offer was not genuine or reasonable, and therefore, the plaintiffs should not be entitled to such costs.

The primary legal issue before the court was whether the defendants had indeed made a genuine offer of compromise, and if so, whether it was unreasonable for the plaintiffs to have refused such an offer. The court had to consider the nature of the offer, the circumstances in which it was made, and whether the plaintiffs' refusal was justified. The court also needed to determine if the defendants' offer was a genuine attempt at resolution, as per the principles outlined in Calderbank v Calderbank.

In reaching its decision, the court examined the specific terms of the offer made by the defendants. It assessed whether the offer was made in good faith and whether the plaintiffs' refusal to accept the offer was reasonable in the context of the overall proceedings. The court found that the defendants had indeed made a genuine offer of compromise, and it was unreasonable for the plaintiffs to have refused it. Consequently, the court ordered that the plaintiffs be awarded costs on an indemnity basis, in accordance with the principles established in Calderbank. This decision highlighted the importance of genuine offers of compromise in litigation and the potential consequences of unreasonably rejecting such offers.

Orders