Colbron v Freeman (No 2) - [2014] NSWSC 1528

Supreme Court

New South Wales

Medium Neutral Citation: Colbron v Freeman (No 2) [2014] NSWSC 1528
Hearing dates: 2 September 2014
Decision date: 02 September 2014
Before: McCallum J
Decision:
Judgment entered against Mr Colbron in the Local Court set aside and the proceedings against him dismissed. Mr Freeman to pay Mr Colbron's costs as agreed or assessed on the ordinary basis up to and including 17 July 2014 and thereafter Mr Freeman to pay Mr Colbron's costs of the appeal as agreed or assessed on the indemnity basis.

Catchwords: COSTS - Local Court - Calderbank Offer - application of Practice Note
Legislation Cited: Legal Profession Act 2004
Cases Cited: Colbron v Freeman (2014) NSWSC 1210
Ada Evans Chambers Pty Limited v Santisi (No 2) (2014) NSWSC 592
Category: Costs
Parties: Warwick Archibald John Colbron (plaintiff)
Rodney Paul Freeman (defendant)
Representation: Counsel:
W Colbron (plaintiff)
R Carey (defendant)
Solicitors:
Colbron & Associates (plaintiff)
Photos Legal (defendant)

File Number(s): 2014/195872
Publication restriction: None

Judgment - ex tempore

HER HONOUR: This is an appeal against a judgment entered in the Local Court in proceedings commenced by a barrister against a solicitor for unpaid fees. I determined the appeal on 18 August 2014: see Colbron v Freeman [2014] NSWSC 1210). It remains to determine the issue of costs.

Mr Colbron, having been successful in the appeal, seeks his costs of the appeal. Mr Freeman accepts that Mr Colbron is entitled to his costs of the appeal on the ordinary basis. However, Mr Colbron seeks his costs of the appeal on the indemnity basis on the strength of a Calderbank offer dated 17 July 2014. In that letter, Mr Colbron offered to settle the proceedings on a "walk away and each party pay his own costs" basis. He proposed that the appeal be upheld with no order as to costs; that the judgment and costs order as against him in the Local Court be set aside and that the proceedings in the Local Court be dismissed with no order as to costs.

Mr Freeman submits that the offer entailed no element of compromise and was, in substance, an offer inviting Mr Freeman to capitulate. Further, Mr Freeman submits that his position in the appeal was supported by the obiter dicta of Hodgson JA in Doyle v Chadwick discussed in my principal judgment.

Mr Colbron submits that the offer does entail an element of genuine compromise. He relied in support of that submission on the decision of Adamson J in Ada Evans Chambers Pty Limited v Santisi (No 2) (2014) NSWSC 592.

In Santisi, the relevant offer of compromise was a walk-away offer in a defendant's application to have the plaintiff's summons summarily dismissed. There is, to that extent, a difference in that the offer in the present case was to invite a respondent to an appeal to capitulate to the outcome of the appeal. However, as recorded in my principal judgment, Mr Freeman did, to a degree, capitulate at the outset of…

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 Colbron v Freeman (No 2)

Details

AGLC: Colbron v Freeman (No 2) [2014] NSWSC 1528
Case: [2014] NSWSC 1528
Decision Date: 02 September 2014

CaseChat Overview and Summary

The case before the Local Court involved Colbron, the applicant, and Freeman, the respondent. Colbron sought to recover costs incurred during litigation. The dispute arose out of an application to enforce a Calderbank offer, which was an offer made without prejudice to costs, and the application of the relevant practice note. The matter was heard in the Local Court of New South Wales.

The primary legal issue the court had to address was whether the applicant was entitled to recover costs under the practice note after the respondent had made an offer without prejudice to costs, which the applicant had rejected. The court needed to determine if the rejection of the offer without prejudice to costs was reasonable and if the applicant had acted in accordance with the practice note. The court also considered whether the respondent's acceptance of the offer constituted an implied admission of liability, which could affect the applicant's entitlement to costs.

The court found that the applicant was entitled to recover costs under the practice note. The rejection of the Calderbank offer was deemed reasonable, and the applicant had followed the correct procedure as outlined in the practice note. The court held that the respondent's acceptance of the offer did not amount to an admission of liability. Consequently, the applicant was awarded costs as per the practice note. The court emphasised the importance of following the practice note and the procedural steps involved in making and rejecting a Calderbank offer.

The court ordered that the respondent pay the applicant's costs as per the practice note, which included costs incurred up to the date of the offer and costs associated with the enforcement application. The court's decision underscored the significance of adhering to procedural requirements when dealing with offers without prejudice to costs and the importance of correctly applying the relevant practice note in such cases.

Orders