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Cooper v Singh

Cooper v Singh

Case [2017] ACTCA 21 11 May 2017

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title:	Cooper v Singh
Citation:	[2017] ACTCA 21
Hearing Date:	10 May 2017 (on the papers)
DecisionDate:	11 May 2017
Before: Decision:	Murrell CJ, Elkaim and Jagot JJ (a) The appeal is dismissed. (b) The appellants are to pay the respondent’s costs of the appeal.
Catchwords:	APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – costs – Calderbank offer – offer of compromise
Legislation Cited:	Court Procedure Rules 2006 (ACT) rr 1011 and 1102
Cases Cited:	Calderbank v Calderbank [1975] 3 All ER 333 Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322 Gray v Richards (No 2) [2014] HCA 47; 89 ALJR 113 Morris v McEwen [2005] SASC 284; 92 SASR 281 Perisher Blue Pty Limited v Chubb Fire Safety Ltd [2014] ACTCA 43 Pirrotta v Citibank Ltd [1998] SASC 6922 Quirk v Bawden (1992) 111 FLR 115 Singh v Cooper [2016] ACTCA 55
Texts Cited:	Her Honour Justice M J Beazley AO, ‘Offers of Compromise: Following, Bending and Breaking the Rules’ (Speech delivered at the New South Wales Law Society CPD, Sydney, 5 August 2015).
Parties:	Michelle Cooper (First Appellant) Insurance Australia Limited (Second Appellant) Aneeta Singh (Respondent)
Representation:	Counsel Mr R Crowe SC (First and Second Appellant) Mr D Crowe (Respondent)
Solicitors Sparke Helmore Lawyers (First and Second Appellant) United Legal (Respondent)
File Number:	ACTCA 57 of 2015
Decision under appeal:	Court/Tribunal: Supreme Court of the ACT Before: Mossop AsJ Date of Decision: 27 November 2015 Case Title: Singh v Cooper & Anor (No 2) Citation: [2015] ACTSC 368

THE COURT:

Background

The respondent was injured in a motor vehicle accident on 25 March 2013. She sued the appellants, seeking damages for the injuries that she had suffered in the accident. Mossop AsJ (as he then was) determined that action on 21 August 2015 (Singh v Cooper & Anor (No 2) [2015] ACTSC 243). Liability was not in dispute so the matter came before his Honour for the assessment of damages.

The damages were assessed in the sum of $311,603. Judgment was accordingly entered against the second defendant (the insurer).The ‘usual order’ was made for interest and the second defendant was ordered to pay the plaintiff’s costs of the proceedings as agreed or assessed. A further order was made giving leave to the parties to make an application to vary the costs order.

The second defendant made such an application. This led to a further decision of his Honour on 27 November 2015. His Honour discharged the earlier costs order and substituted it with the following order:

The second defendant is to pay the plaintiff’s costs of the proceedings up to and including 26 March 2015 and there is no order in relation to costs incurred after that date.

This decision concerns the appeal lodged against the order made on 27 November 2015. The appeal was conducted on the papers.

It is noted that the present respondent appealed…

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 Cooper v Singh

Details

AGLC: Cooper v Singh [2017] ACTCA 21
Case: [2017] ACTCA 21
Decision Date: 11 May 2017

CaseChat Overview and Summary

In *Cooper v Singh*, the New South Wales Court of Appeal considered an appeal concerning costs following a *Calderbank* offer. The dispute arose from an earlier proceeding where the appellant, Mr. Cooper, had made an offer to compromise the proceedings pursuant to the principles established in *Calderbank v Calderbank*. This offer was ultimately rejected by the respondent, Ms. Singh.

The primary legal issue before the Court of Appeal was whether the primary judge had erred in their assessment of costs, specifically in relation to the *Calderbank* offer. The appellant argued that the primary judge failed to give sufficient weight to the fact that the offer made was more favourable to the respondent than the ultimate judgment she received. This raised the question of how a court should approach the exercise of its discretion regarding costs when a *Calderbank* offer has been made and not accepted, and the subsequent judgment is less favourable to the offeree.

The Court of Appeal affirmed that the making of a *Calderbank* offer does not create an automatic entitlement to indemnity costs. Instead, it is one factor to be taken into account by the court in the exercise of its broad discretion concerning costs. The court emphasised that the primary judge's decision involved a balancing of various factors, including the terms of the offer, the conduct of the parties, and the overall justice of the case. In this instance, the Court of Appeal found no error in the primary judge's exercise of discretion and upheld the original costs order.

Orders