SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Cooke v Rixon (No. 2) |
Citation: | [2017] ACTSC 396 |
Hearing Date: | 1 November 2017 |
DecisionDate: | 22 December 2017 |
Before: | McWilliam AsJ |
Decision: | 1. The plaintiff is to pay the costs of the first and second defendants from 16 March 2017 to 2 August 2017, on the ordinary basis. |
Catchwords: | COSTS – discontinuance before hearing – whether proceedings had no reasonable prospect of success or were unreasonably continued – whether plaintiff unreasonably rejected Calderbank offer |
| Legislation Cited: | Limitation Act 1985 (ACT) s 36 Court Procedures Rules 2006 (ACT) rr 1002, 1010, 1160, 1163, 1721 |
Cases Cited: | Becker v Queensland Investment Corp (No 2) [2009] ACTSC 147 Calderbank v Calderbank [1976] Fam 93 Hulanicki v Walton (No 2) [2015] ACTCA 45 Leichhardt Municipal Council v Green [2004] NSWCA 341 Redmond v Masterton Canberra Pty Limited [2016] ACTSC 242 Rolls Royce Industrial Power (Pacific) Limited v James Hardie & Co Pty Limited[2001] NSWCA 461 |
Parties: | Hamid Cooke (Plaintiff) Paul Rixon (First Defendant) Insurance Australia Limited t/as NRMA Insurance (ACN: 000 016 722) (Second Defendant) Nominal Defendant (Third Defendant) |
Representation: | Counsel A Muller (Plaintiff) J Pappas (First and Second Defendants) |
| Solicitors Maliganis Edwards Johnson (Plaintiff) HWL Ebsworth Lawyers (First and Second Defendants) | |
File Number: | SC 35 of 2014 |
On 1 November 2017, I granted leave to the plaintiff, in accordance with r 1160(2) of the Court Procedures Rules 2006 (ACT) (Rules), to discontinue these proceedings as against the first and second defendants. Leave of the Court was required because the matter had been listed for a two-day hearing to commence on 4 December 2017.
The proceedings against the third defendant, the Nominal Defendant, have been settled separately.
Issues for determination
The question of costs in relation to the first and second defendants remains. The power to award costs is in the discretion of the Court, and in the present circumstances of discontinuance, the Court may make the order for costs it considers appropriate: see rr 1163(2) and…
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- Cooke v Rixon (No. 2) [2017] ACTSC 396
- Case
- [2017] ACTSC 396
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CaseChat Overview and Summary
The primary legal issues before the court were whether the proceedings had no reasonable prospect of success or were unreasonably continued, and whether the plaintiff unreasonably rejected the Calderbank offer. The court needed to assess the merits of the defendants' case, the conduct of the parties during the proceedings, and the reasonableness of the Calderbank offer in light of the circumstances.
The court determined that the proceedings had no reasonable prospect of success and were unreasonably continued. It found that the plaintiff had unreasonably rejected the Calderbank offer, which was reasonable given the circumstances. The court held that the plaintiff's conduct in pursuing the proceedings was unjustified, and as a result, ordered the plaintiff to pay the costs of the first and second defendants from 16 March 2017 to 2 August 2017, on the ordinary basis. This decision underscores the importance of assessing the merits of legal proceedings and the reasonableness of offers made during litigation.
Orders
Orders of the court
1. The plaintiff is to pay the costs of the first and second defendants from 16 March 2017 to 2 August 2017, on the ordinary basis.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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