BUTTROSE and ANOR v The Senior’s Choice (Australia) Pty Ltd and ANOR (No.3)

[2014] FCCA 2156

FEDERAL CIRCUIT COURT OF AUSTRALIA

BUTTROSE & ANOR v THE SENIOR’S CHOICE (AUSTRALIA) PTY LTD & ANOR (No.3) [2014] FCCA 2156

Catchwords:
COSTS – Calderbank Offer – capable of acceptance – time in which to accept – the reasonableness of that time.

Cases cited:

Calderbank v Calderbank [1975] 3 All ER 333
Colgate-Palmolive v Cussons Pty Ltd (1993) 46 FCR 225
Cutts v Head [1984] Ch 290
Nolan v Nolan [2003] VSC 136
Perry v Comcare (2006) 226 ALR 724

First Applicant: ITA BUTTROSE

Second Applicant: ITA BUTTROSE PTY LTD

First Respondent: THE SENIOR'S CHOICE (AUSTRALIA) PTY LTD

Second Respondent: ANDREW PHILPOT

File Number: MLG 1053 of 2013

Judgment of: Judge O'Dwyer

Hearing date: 3 March 2014

Date of Last Submission: 3 March 2014

Delivered at: Melbourne

Delivered on: 12 September 2014

REPRESENTATION

Counsel for the Applicant: Mr Rivette

Solicitors for the Applicant: Hunt & Hunt

For the First Respondent: No appearance

The Second Respondent: No appearance

ORDERS

1. The Respondents pay the Applicants’ costs on a party/party basis until

   
   

   3 September 2013 and thereafter on an indemnity basis.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1053 of 2013

ITA BUTTROSE

First Applicant

ITA BUTTROSE PTY LTD
Second Applicant

And

THE SENIOR'S CHOICE (AUSTRALIA) PTY LTD

First Respondent

ANDREW PHILPOT

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. My assessment of damages in this case was handed down on 21 August 2014. At that time Counsel for the applicants indicated that he may seek an order for costs other than the usual order for party/party costs. Accordingly, the applicants were given 14 days in which to provide submissions in respect of costs and the respondents were given 21 days to respond. The applicants have provided submissions, but no response has been filed by the respondents.

2. The applicants seek indemnity costs and rely on 2 Calderbank letters of offer sent to the respondents.[1] The first was sent on 24 April 2013 and the second (“the second Calderbank letter”) on 3 September 2013. At the time the first letter was sent proceedings had not been issued, whereas they had been at the time of the second letter.

   [1]     Calderbank v Calderbank [1975] 3 All ER 333; see also Cutts v Head [1984] Ch 290

Bases of claim for indemnity costs

1. The applicants submitted that the letter sent to the respondents on 24 April 2013 (“the First Calderbank letter”) complied with all necessary requirements for a Calderbank offer. The applicants referred to Genovese v BGC Construction Pty Ltd (No.2) [2007] FMCA 601 at [47]-[48] where Lucev FM (as he then was) set out a summary of relevant authorities and the circumstances where Courts have exercised their discretion to depart from the usual practice of awarding party/party costs to the successful litigant.[2]

   [2]     See also Nolan v Nolan [2003] VSC 136

2. Of the authorities referred to in Genovese the applicants rely upon the respondents’ unreasonable rejection of the first Calderbank offer.[3]
   

   [3]     Colgate-Palmolive v Cussons Pty Ltd (1993) 46 FCR 225

   [4]     Perry v Comcare (2006) 226 ALR 724

   The first Calderbank letter set out the background to the first applicant's complaints and further set out the remedial action required by her, together with a demand for the payment of $25,000 in full settlement. I am satisfied that the first Calderbank letter was "clear, precise and certain", but I am not satisfied that it was "capable of acceptance."[4] To be capable of acceptance an offer, in my view, needs to provide sufficient time to be considered and, where necessary, expert advice to be provided. The first Calderbank letter demanded a payment of $25,000 by 3 May 2013. Having regard to the letter being sent on 24 April 2013, with Anzac Day following, there was insufficient time, in my view, to consider and obtain advice on the complex issues arising in this case by the deadline set. Accordingly, I am not satisfied that there should be indemnity costs for the first applicant. I also note that the second applicant was not specifically referred to, but the applicant nonetheless sought to capture indemnity costs for the second applicant by reference in the first Calderbank letter to the breach of copyright. The letter specifically referred to "my client’s copyright" and was limited only to a claim by the first applicant.

3. In respect of the second Calderbank letter sent on 3 September 2013, it again set out in some detail the applicants’ complaints and made a demand for payment of $50,000 by 18 September 2013. In my view, the second Calderbank letter qualifies as "clear, precise, certain and capable of acceptance". In my view, the second Calderbank letter provided adequate time for the respondents to consider their position and obtain appropriate advice. It is appropriate, in those circumstances that indemnity costs should apply from 3 September 2013.

4. There will be an order that the applicants’ costs be paid by the respondents on a party/party basis until 3 September 2013 and thereafter on an indemnity basis.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge O'Dwyer

Associate:  G. Car

Date:  12 September 2014