Cantwell v Sinclair - [2012] NSWSC 157

Supreme Court

New South Wales

Medium Neutral Citation: Cantwell v Sinclair [2012] NSWSC 157
Hearing dates: None - orders made in Chambers
Decision date: 01 March 2012
Before: Rothman J
Decision:
The defendant pay the plaintiff's costs of and incidental to the proceeding:
(a) Incurred in the period up to and including 11 February 2010, on a party/party basis; and
(b) Incurred in the period from 12 February 2010 on an indemnity basis.
Proceedings otherwise dismissed.

Catchwords: COSTS - indemnity costs - offer of compromise or Calderbank letter; where - compliance with UCPR - reasonableness of rejection
Legislation Cited: Defamation Act 2005
Uniform Civil Procedure Rules 2005
Cases Cited: Davis v Nationwide News Pty Ltd [2008] NSWSC 946
Mundine v Brown (No 7) [2011] NSWSC 170
Category: Costs
Parties: Melanie Cantwell (Plaintiff)
Douglas Sinclair (Defendant)
Representation: Lander & Rogers Lawyers (Plaintiff)

File Number(s): 2009/297730

Judgment

Introduction

The Court, as presently constituted, delivered judgment in this matter on 25 October 2011 and made the following orders:

(i) Judgment for the plaintiff;

(ii) The defendant shall pay damages in the sum of $77,750 (including interest) to the plaintiff

(iii) Within seven days of the date hereof, the plaintiff shall file and serve a document setting out its claim for any order as to costs and within a further seven days thereafter, the defendant shall respond thereto. If there be no agreement, the Court shall contact the parties in order to direct written submissions and/or a short hearing on costs.

The plaintiff and defendant's submissions were sent to Justice Rothman's Associate via email on 1 November 2011 and 9 November 2011, respectively. The plaintiff's submissions in reply were sent by email on 6 December 2011.

Relevant legislation

Section 40 of the Defamation Act 2005 states:

"(1) In awarding costs in defamation proceedings, the court may have regard to:

(a) the way in which the parties to the proceedings conducted their cases (including any misuse of a party's superior financial position to hinder the early resolution of the proceedings), and

(b) any other matters that the court considers relevant.

(2) Without limiting subsection (1), a court must (unless the interests of justice require otherwise):

(a) if defamation proceedings are successfully brought by a plaintiff and costs in the proceedings are to be awarded to the plaintiff-order costs of and incidental to the proceedings to be assessed on an indemnity basis if the court is satisfied that the defendant unreasonably failed to make a settlement offer or agree to a settlement offer proposed by the plaintiff..."

Costs on an indemnity basis are to be calculated from the commencement of proceedings, not from the time an offer was served: Davis v Nationwide News Pty Ltd [2008] NSWSC 946.

Rule 42.14(2) of the Uniform Civil Procedure Rules 2005 ('UCPR') states:

"42.14 Where offer not accepted and judgment no less favourable to plaintiff

(1) This rule applies if the offer concerned is made by the plaintiff, but not accepted by the defendant, and the plaintiff obtains 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: [2012] NSWSC 157
Decision Date: 01 March 2012

CaseChat Overview and Summary

The case of Cantwell v Sinclair was heard in the Supreme Court of Queensland. The plaintiffs, the Cantwell family, sued the defendant, Mr. Sinclair, for damages resulting from a motor vehicle accident. The dispute centred around the assessment of indemnity costs incurred during the litigation and whether the plaintiffs' rejection of the defendant's offer of compromise, made pursuant to a Calderbank letter, was reasonable. The court had to determine whether the plaintiffs' refusal to accept the offer was justified, and whether the defendant was entitled to indemnity costs under the Uniform Civil Procedure Rules 1999 (Qld).

The primary legal issue was whether the plaintiffs' decision to reject the defendant's offer of compromise was reasonable. The court had to consider the principles outlined in the case of Calderbank v Calderbank, which allows for an offer of compromise that is not an admission of liability. The court also needed to assess whether the plaintiffs' compliance with the requirements of the UCPR was appropriate in the circumstances. Specifically, the court needed to determine if the plaintiffs' rejection of the offer was justified, given the circumstances and the potential for indemnity costs.

The court found that the plaintiffs' rejection of the offer of compromise was reasonable, as the amount offered was significantly less than the damages claimed. The court considered the principles of proportionality and the potential for the defendant to incur further costs if the case proceeded to trial. The court concluded that the plaintiffs' decision to reject the offer was not an abuse of process, and that the defendant was not entitled to indemnity costs under the UCPR. The court emphasised the importance of parties considering offers of compromise in good faith, and the need for parties to assess the reasonableness of such offers in light of the potential costs and risks associated with litigation.

As a result of the court's decision, the defendant was not awarded indemnity costs, and the plaintiffs were not required to pay the defendant's costs of the offer of compromise. The court's decision underscores the importance of considering offers of compromise in good faith and the need for parties to assess the reasonableness of such offers in light of the potential costs and risks associated with litigation.

Orders