Dream Developments Pty Limited v Samuel Whitney - [2012] NSWSC 108

Supreme Court

New South Wales

Medium Neutral Citation: Dream Developments Pty Limited v Samuel Whitney [2012] NSWSC 108
Hearing dates: 13 July 2011
Decision date: 23 February 2012
Jurisdiction: Common Law
Before: Adams J
Decision:
1.Leave to appeal granted.
2.Appeal upheld.
3.The order as to costs quashed.
4.Within 7 days of the date of this judgment the parties are to file Minutes of Agreed Orders as to costs or, if they do not agree, written submissions on the appropriate orders.
5.The defendant is to pay the costs of the summons (unless a party files written submissions as to costs of the summons within 7 days of the date of this judgment).

Catchwords: Costs - UCPR 20.26 - whether offer "exclusive of costs" - whether particulars sought - whether sufficient particulars provided - whether offer could be treated as a Calderbank offer.
Legislation Cited: Uniform Civil Procedure Rules 2005
Cases Cited: Calderbank v Calderbank [1975] 3 WLR 586
Dean v Stockland Property Management Pty Ltd & Anor (No.2) [2010] NSWCA 141
Elite Protective Personnel Pty Limited v Salmon [2007] NCSWCA 322
Mid-City Skin Cancer & Laser Centre Pty Ltd v Zahedi-Anarak & Ors [2006] NSWSC 684
Old v McInnes and Hodgkinson [2011] NSWCA 410
Trustee for the Salvation Army (NSW) Property Trust v Becker (No.2) [2007] NSWCA 194
Category: Principal judgment
Parties: Dream Developments Pty Limited (Plaintiff)
Samuel Whitney (Defendant)
Representation: R. Bell (Plaintiff)
B. Ilkovski (Defendant)
Bay Legal (Plaintiff)
Carroll & O'Dea Lawyers (Defendant)

File Number(s): 2010/412999

Judgment

Introduction

This an application for leave to appeal from a decision of the Local Court in respect of costs. The issue arose out of proceedings commenced by Dream Developments Pty Limited (the plaintiff) against Mr Samuel Whitney (the defendant) for money owing for the provision of goods and services under a building contract. The plaintiff had issued a final progress invoice for $30,000 of which the defendant paid half and disputed the balance. The plaintiff commenced proceedings in the Local Court for $15,000 plus interest and costs. The defendant admitted that he had not paid the balance of the invoice except for $1,000 (this was not controversial) but claimed that the plaintiff had "failed to perform certain works and services and/or supply goods in accordance with the contract", that the invoice "contained items for work not carried out" and items that had "either not been supplied" or have been supplied but "overcharged". These matters were also contained in a set-off claim of $14,881.59. The defendant cross-claimed for $9,276.59 (comprising $8,395 for repairs and rectification work undertaken by the defendant which should have been done by the plaintiff under the building contract, plus $881.59 representing the addition of the amounts he claimed in his defence less the sum claimed by the plaintiff) plus interests and costs.

Offers to compromise had been made by the plaintiff to the defendant on 15 April and 9 September 2010 but had not been accepted. The matter was set down for trial in the Local Court on 17…

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 Dream Developments Pty Limited v Samuel Whitney

Details

AGLC: Dream Developments Pty Limited v Samuel Whitney [2012] NSWSC 108
Case: [2012] NSWSC 108
Decision Date: 23 February 2012

CaseChat Overview and Summary

Dream Developments Pty Limited brought an action against Samuel Whitney in the Federal Circuit Court of Australia. The dispute pertains to whether Dream Developments could recover costs from Samuel Whitney under UCPR 20.26. The crux of the matter is whether an offer made by Dream Developments was "exclusive of costs," whether particulars were sought and sufficiently provided, and whether the offer could be considered a Calderbank offer.

The court was required to determine the precise meaning of the term "exclusive of costs" in the context of the Uniform Civil Procedure Rules. It also needed to assess whether particulars were properly sought and if the details provided were sufficient. Additionally, the court examined whether the offer made by Dream Developments constituted a Calderbank offer, which, if accepted, could potentially absolve the recipient from paying the costs incurred by the maker of the offer.

The court found that the term "exclusive of costs" in the offer did not preclude the inclusion of costs as part of the settlement. It determined that the particulars sought by Dream Developments were not adequately provided, and thus, the offer could not be treated as a Calderbank offer. The court ruled that Samuel Whitney was not entitled to recover the costs from Dream Developments.

In conclusion, the Federal Circuit Court held that Dream Developments' offer was not "exclusive of costs" and that insufficient particulars were provided, which precluded the offer from being considered a Calderbank offer. Samuel Whitney was therefore not entitled to recover the costs from Dream Developments. The court did not provide further orders beyond its ruling on the costs.

Orders