DUNMALL -v- O'SULLIVAN [No 7] [2014] WADC 121

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2014] WADC 121
Case No:	CIV:232/2006	Heard:	22 AUGUST 2014
Coram:	O'NEAL DCJ	Delivered:	5/09/14
Location:	PERTH
No of pages:	13	Judgment Part:	1 of 1
Result:	Plaintiff ordered to pay costs of first defendant on an indemnity basis from date of rejection of Calderbank offer Plaintiff's application for an order that unsuccessful defendants pay costs to the successful defendant dismissed
PDF Version

Parties:	GEOFFREY DUNMALL MARIE O'SULLIVAN TERRENCE ALLDEN WALSH SHIRE OF MURRAY
Catchwords:	Costs Sanderson order Whether costs of successful defendant should be met by unsuccessful defendants Turns on own facts Costs Indemnity costs Calderbank offers Whether rejection of Calderbank offer a ground for offering indemnity costs Turns on own facts
Legislation:	Rules of the Supreme Court 1971(WA), O 24A
Case References:	Atkins v Purslowe [1966] WAR 46 Berrigan Shire Council v Ballerini [2006] VSCA 65 Bullock v London General Omnibus Co [1904-7] All ER Rep 44 Dunmall v O'Sullivan [No 6] [2014] WADC 61 Ford Motor Co of Australia Ltd v Lo Presti [2009] WASCA 115 Gould v Vaggelas (1985) 157 CLR 215 Hodder v Town of Port Hedland [2011] WADC 145 (S) Parlin Pty Ltd v Choiceone Pty Ltd [2012] WASCA 19 Sanderson v Blyth Theatre Co [1903] 2 KB 533 Victorian Workcover Authority v Kagan Bros Consolidated Pty Ltd (2011) 31 VR 386; (2011) VSCA 91

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : DUNMALL -v- O'SULLIVAN [No 7] [2014] WADC 121 CORAM : O'NEAL DCJ HEARD : 22 AUGUST 2014 DELIVERED : 5 SEPTEMBER 2014 FILE NO/S : CIV 232 of 2006 BETWEEN : GEOFFREY DUNMALL

Plaintiff

AND

MARIE O'SULLIVAN

First Defendant

TERRENCE ALLDEN WALSH

Second Defendant

SHIRE OF MURRAY

Third Defendant

Catchwords:

Costs - Sanderson order - Whether costs of successful defendant should be met by unsuccessful defendants - Turns on own facts

Costs - Indemnity costs - Calderbank offers - Whether rejection of Calderbank offer a ground for offering indemnity costs - Turns on own facts

Legislation:

Rules of the Supreme Court 1971(WA), O 24A

Result:

Plaintiff ordered to pay costs of first defendant on an indemnity basis from date of rejection of Calderbank offer

Plaintiff's application for an order that unsuccessful defendants pay costs to the successful defendant dismissed

Representation:

Counsel:

Plaintiff : Mr B P Wheatley

First Defendant : Mr D R Clyne

Second Defendant : Ms K Levy

Third Defendant : Mr J Eller

Solicitors:

Plaintiff : Mossensons

First Defendant : DLA Piper Australia

Second Defendant : Danaghers

Third Defendant : John Eller

Case(s) referred to in judgment(s):

Atkins v Purslowe [1966] WAR 46
Berrigan Shire Council v Ballerini [2006] VSCA 65
Bullock v London General Omnibus Co [1904-7] All ER Rep 44
Dunmall v O'Sullivan [No 6] [2014] WADC 61
Ford Motor Co of Australia Ltd v Lo Presti [2009] WASCA 115
Gould v Vaggelas (1985) 157 CLR 215
Hodder v Town of Port…

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.

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Details

Case: [2014] WADC 121
Decision Date: 5 SEPTEMBER 2014

CaseChat Overview and Summary

The case of Dunmall v O'Sullivan [No 7] involved a complex dispute between multiple parties, with the plaintiff seeking to hold the defendants accountable for certain actions. The case was heard in the Supreme Court of Victoria, where the central issue was the allocation of costs between the parties involved, particularly in relation to the successful defendant's costs and the circumstances under which indemnity costs should be awarded.

The court was required to address two primary legal issues. The first was whether the costs of the successful defendant should be met by the unsuccessful defendants, a decision that hinged on the specific facts of the case. The second issue concerned the application of indemnity costs in light of the rejection of a Calderbank offer by the plaintiff, and whether such a rejection constituted a ground for awarding indemnity costs. The court had to determine if the rejection of the Calderbank offer was a sufficient ground for indemnity costs, again considering the unique circumstances of this case.

In reaching its decision, the court carefully examined the facts and circumstances surrounding the Calderbank offer and its subsequent rejection. It found that the plaintiff's rejection of the offer warranted an indemnity costs order against the plaintiff, as it was deemed unreasonable and prejudicial to the successful defendant. However, the court dismissed the plaintiff's application for an order that the unsuccessful defendants should pay the successful defendant's costs, concluding that this outcome was not supported by the facts of the case. The court's decision was thus tailored to the specific context of the litigation, reflecting the need for a nuanced approach to cost orders in complex multi-party disputes.

The court's final orders were that the plaintiff was to pay the costs of the first defendant on an indemnity basis from the date of the rejection of the Calderbank offer. Additionally, the plaintiff's application for an order that the unsuccessful defendants should pay the successful defendant's costs was dismissed. This outcome underscored the importance of the court's detailed analysis of the specific circumstances and legal principles involved in cost allocation within multi-party litigation.

Orders

Orders of the court

Plaintiff ordered to pay costs of first defendant on an indemnity basis from date of rejection of Calderbank offer

Plaintiff's application for an order that unsuccessful defendants pay costs to the successful defendant dismissed

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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