Capital Aircraft Services Pty Ltd v Nicholas Carl Brolin
[2008] ACTCA 2
•28 February 2008
CAPITAL AIRCRAFT SERVICES PTY LTD v NICHOLAS CARL BROLIN
[2008] ACTCA 2 (28 February 2008)
APPEAL – Costs – Costs of dismissed Appeal – Costs on a Party/Party Basis – Indemnity costs – Offer for settlement – Counter offer – Calderbank letter – Reasonableness of refusal of offer – Substantial corporate entity – retirement of appeal judge
Supreme Court Act 1933 (ACT), s 60A
Cairns v Woolworths [2006] ACTSC 17
Kelson v David Syme & Co Ltd [1998] ACTSC 87
Costello v Random House Australia Pty Ltd [1999] ACTSC 63
Berrigan Shire Council v Ballorini & anor (No 2) [2006] VSCA 65
Quick v Bawdon (1992) 111 FLR 115
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 36 - 2006
No. SC 516 of 2003
Judges: Higgins CJ, Crispin P and Madgwick J
Court of Appeal of the Australian Capital Territory
Date: 28 February 2008
IN THE SUPREME COURT OF THE ) No. ACTCA 36 - 2006
) No. SC 516 of 2003
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:CAPITAL AIRCRAFT SERVICES PTY LTD
Appellant
AND:NICHOLAS CARL BROLIN
Respondent
ORDER
Judges: Higgins CJ, Crispin P and Madgwick J
Date: 28 February 2008
Place: Canberra
THE COURT ORDERS THAT:
The appellant pay the respondent’s costs of and incidental to the appeal.
IN THE SUPREME COURT OF THE ) No. ACTCA 36 - 2006
) No. SC 516 of 2003
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:CAPITAL AIRCRAFT SERVICES PTY LTD
Appellant
AND:NICHOLAS CARL BROLIN
Respondent
Judges: Higgins CJ, Crispin P and Madgwick J
Date: 28 February 2008
Place: Canberra
REASONS FOR JUDGMENT
THE COURT:
In this matter, the appeal was, on 26 April 2007, dismissed. Costs were reserved.
On 17 September 2007, Crispin P directed that written submissions be filed by 21 September 2007 in support of any application for costs by the respondent, and that the appellant to be allowed 48 hours to respond in writing.
Unfortunately, the trial judge, Connolly J, died on 25 September 2007 and Crispin P retired with effect from 10 October 2007. These events have delayed the decision on costs which otherwise would have been rendered sooner. By virtue of s 60A of the Supreme Court Act 1933 (ACT) Crispin P, notwithstanding his retirement, retains office for the purpose of concluding this appeal, including, in particular any order for costs.
The respondent contends that the order for costs should be made in his favour upon the conventional party/party basis up to 11 December 2006 and thereafter on an indemnity basis.
The basis for the contention is that, by letter dated 8 November 2006, the appellant offered to settle the matter, that offer expiring on 22 November 2006. By letter dated 20 November 2006, the respondent rejected that offer and counter-offered the discontinuance of all proceedings save that the existing agreement as to costs would remain enforceable. It was expressed to be open for 21 days, that is, until 11 December 2006. It was not accepted. The agreement was that the respondent would forego any claim to have the costs of the appeal.
In further support of his submission the respondent points to the fact that the appellant is a substantial commercial corporate entity (see Cairns v Woolworths [2006] ACTSC 17, [9]-[10]).
The appellant, in reply, agrees that it must submit to a costs order in respect of the appeal but opposes the making of an indemnity costs order.
The mere fact, it submits, that the offer was not bettered in the result does not imply that an indemnity costs order should be made. It refers to Kelson v David Syme & Co Ltd [1998] ACTSC 87 (per Crispin J) and to Costello v Random House Australia Pty Ltd [1999] ACTSC 63 (per Higgins J).
The appellant referred also to the remarks of Calloway JA in Berrigan Shire Council v Ballorini & anor (No 2) [2006] VSCA 65, [17] to the effect that the offer of compromise in question was ‘not so much an offer of compromise as a demand to capitulate’. That was an offer in similar terms to the respondent’s offer ‘to walk away with no order as to costs’.
As Quick v Bawdon (1992) 111 FLR 115 makes clear, the touchstone is whether the rejecting party has failed to act reasonably and so seriously as to warrant the order sought being made.
The issue both at trial and on appeal was the reasonableness of the restraint of trade clause at issue. All four judges who have considered the particular clause in this case have agreed that it was not shown to be justified but that is far from saying that it was so obviously unjustifiable as to render the contrary assertion unreasonable.
In our view the respondent, though entitled to the costs of the appeal, has not made out a case for indemnity costs despite the terms of the Calderbank letter of 20 November 2006.
The order of the Court is that the appellant pay the respondent’s costs of and incidental to the appeal.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date: 28 February 2008
Counsel for the Appellant: Mr B Meagher SC
Solicitor for the Appellant: Colquhoun Murphy
Counsel for the Respondent: Mr I Neil SC
Solicitor for the Respondent: Williams Love & Nicol
Date of hearing: 16 February 2007
Date of judgment: 28 February 2008
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