Bonny Glen Pty Ltd v Country Energy (No 2)
[2009] NSWCA 106
•13 May 2009
New South Wales
Court of Appeal
CITATION: Bonny Glen Pty Ltd v Country Energy (No 2) [2009] NSWCA 106 HEARING DATE(S): On submissions
JUDGMENT DATE:
13 May 2009JUDGMENT OF: Hodgson JA at 1; Ipp JA at 12; Macfarlan JA at 13 DECISION: The following additional order is made: Set aside the costs orders made below on 31 August 2007 and 2 October 2007, and in lieu thereof order that Country Energy pay Bonny Glen’s costs of the proceedings below. CATCHWORDS: PROCEDURE – Costs – Calderbank offers by plaintiff – Whether unreasonable for defendant not to have accepted them. CATEGORY: Procedural and other rulings CASES CITED: Bonny Glen P/ L v Country Energy ([2009] NSWCA 26 PARTIES: BONNY GLEN PTY LIMITED (ACN 001 005 787) (Appellant/Cross-Respondent)
COUNTRY ENERGY (Respondent/Cross Appellant)FILE NUMBER(S): CA 40636/07 COUNSEL: P T NEWTON (Appellant/Cross-Respondent)
J J RYAN (Respondent/Cross Appellant)SOLICITORS: Bruce Stewart Dimarco (Appellant/Cross-Respondent)
Colin Biggers & Paisley (Respondent/Cross Appellant)LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 3760/04 LOWER COURT JUDICIAL OFFICER: J C Gibson DCJ LOWER COURT DATE OF DECISION: 31 August 2007
CA 40636/07
DC 3760/0413 MAY 2009HODGSON JA
IPP JA
MACFARLAN JA
1 HODGSON JA: The principal judgment in this matter was delivered on 24 February 2009 ([2009] NSWCA 26), giving Bonny Glen a judgment for $381,985.65. An order was made as to the costs of the appeal and the cross-appeal, and a direction was given that there be written submissions as to the costs of the proceedings below. Submissions as to costs have been provided, extending to the costs of the appeal and the cross-appeal. There is a question whether it is now possible to alter the orders as to the costs of the appeal and cross-appeal, in circumstances where the application to vary those orders was not made within fourteen days of delivery of the judgment. However, as will appear, there is in my opinion no basis for altering those orders, and it is not necessary to consider whether or not they could be altered.
2 By its submission, Bonny Glen seeks orders:
- (1) That Country Energy pay Bonny Glen’s costs of the proceedings below on the ordinary basis up to 6 October 2005 and on an indemnity basis from 7 October 2005; and
(2) That Country Energy pay Bonny Glen’s costs of the appeal and cross-appeal on an indemnity basis.
3 Country Energy submits that the costs below and in the Court of Appeal should follow the event on the ordinary basis.
4 The factual matter on which Bonny Glen relies in support of its contention for orders different from those contended for by Country Energy consists primarily of two Calderbank offers to settle the proceedings, the first dated 7 October 2005 and the second dated 22 October 2005.
5 The first offer, dated 7 October 2005, was expressed to be open for 21 days and it offered to settle the proceedings on the basis that Country Energy pay Bonny Glen $350,000 in full satisfaction of its principal claim plus costs as agreed or assessed. Country Energy did not accept that offer.
6 The second offer, which was dated 22 December 2005, was expressed to be open until 31 January 2006, and it was to accept, in full satisfaction of Bonny Glen’s claim the sum of $250,000 inclusive of costs. Country Energy did not accept this offer within the time specified, but purported to accept it on 7 February 2006. However, Bonny Glen did not reopen the offer or accept Country Energy’s purported acceptance of it.
7 As at 7 October 2005, damages evidence served by Bonny Glen on Country Energy quantified damages at $146,627. However, an affidavit dated 14 October 2005, said to have been served before 28 October 2005, disclosed that all of the fruit trees within the affected one-hectare block would be removed, thereby signalling that the claim for damages could be much increased. A report from Bonny Glen’s expert dated 18 October 2005, said to have been served by 22 December 2005, asserted that the remainder of the apple block should be removed, but it gave calculations totalling only $54,985 plus $8,067 for each year’s delay in replacing destroyed trees. It appears that calculations supporting the much larger figures were not served until later.
8 In those circumstances, I am not satisfied it was unreasonable for Country Energy not to have accepted the offer of 7 October 2005 within the period of 21 days limited by the offer; and I am not satisfied that it was unreasonable for Country Energy not to have accepted the offer of 22 December 2005 within the period limited by that offer. The fact that Country Energy purported to accept that offer seven days after it expired does not in my view support a different conclusion.
9 For those reasons, I do not think a ground is made out to depart from the usual basis on which costs would be ordered, namely costs following the event on the ordinary basis.
10 As regards the costs of the appeal and cross-appeal, it was in my opinion plainly not unreasonable for Country Energy to oppose Bonny Glen’s appeal and to bring its cross-appeal, particularly in circumstances where there was no further offer of settlement from Bonny Glen after the decision at first instance. Accordingly, no ground is made out to vary the orders made in relation to the costs of the appeal and cross-appeal.
11 For those reasons, I propose the following additional order: Set aside the costs orders made below on 31 August 2007 and 2 October 2007, and in lieu thereof order that Country Energy pay Bonny Glen’s costs of the proceedings below.
12 IPP JA: I agree with Hodgson JA.
13 MACFARLAN JA: I agree with Hodgson JA.
0