Dymocks v Capral - [2013] NSWSC 514

Supreme Court

New South Wales

Medium Neutral Citation: Dymocks v Capral [2013] NSWSC 514
Hearing dates: 02/05/2013
Decision date: 02 May 2013
Jurisdiction: Equity Division - Technology and Construction List
Before: McDougall J
Decision:
Costs payable on the indemnity basis from date of service of offer of compromise.

Catchwords: COSTS - indemnity costs - offer of compromise - whether sufficient particulars - whether offer to one defendant should be considered together with offers to other defendants - whether material change to offeror's claim after offer made - whether relevant that offer would not have resolved cross-claims between defendants
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Calderbank v Calderbank [1975] 3 All ER 333
Dymocks Book Arcade Pty Ltd v Capral Ltd [2011] NSWSC 1423
Dymocks Book Arcade Pty Ltd v Capral Ltd [2013] NSWSC 343
Vieira v O'Shea (No 2) [2012] NSWCA 121
Category: Costs
Parties:
Representation: Counsel:
Solicitors:

File Number(s): 2009/298893

Judgment (EX TEMPORE - REVISED 2 MAY 2013)

HIS HONOUR: I am concerned today with a costs dispute between the plaintiff, Dymocks, and the second defendant, Dalton. For reasons that I gave on 16 April 2013 ([2013] NSWSC 343), I concluded that Dymocks was entitled to recover against each defendant an amount in excess of $764,000.00, together with interest.

All issues arising out of those reasons as between Dymocks and Capral have been dealt with. Further, judgment has been entered for Dymocks against Dalton pursuant to those reasons, and Dalton has been ordered to pay Dymocks' costs. What is left is Dymocks' application for indemnity costs.

The primary basis on which Dymocks seeks indemnity costs is that, on 25 June 2010, it made an offer of compromise to Dalton by which it agreed to accept, in settlement of its claim against Dalton but exclusive of costs, the sum of $550,000. Clearly enough, having regard to what I have just said, Dymocks seems to have bettered that offer.

It should also be noted that, on the same day (25 June 2010) but approximately ten minutes earlier, Dymocks made a "Calderbank" offer to Dalton. By that offer, Dymocks said that it would accept either $550,000 plus costs "on a party and party basis as agreed or assessed" or, alternatively, $700,000 inclusive of costs.

The Calderbank letter gave reasons why, in Dymocks' view, the offer was

a reasonable one and should be accepted.

It has not been suggested that the offer of compromise made on 25 June 2010 was anything other than an offer that complied with the rules. Nonetheless, it should be noted that the offer of compromise itself said, perhaps by way of greater precaution, that if the rules were held not to apply to it, it was to be treated as an offer, on the same terms and conditions, made in accordance with the principles stated in Calderbank v Calderbank [1975] 3 All ER 333.

Since, as I have said, it has not been suggested that the offer did not comply…

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 Dymocks v Capral

Details

AGLC: Dymocks v Capral [2013] NSWSC 514
Case: [2013] NSWSC 514
Decision Date: 02 May 2013

CaseChat Overview and Summary

The case of Dymocks v Capral involved a dispute between the parties regarding indemnity costs. Dymocks, the plaintiff, sought indemnity costs from Capral, the defendant, following an offer of compromise that was allegedly not sufficiently particularised. The case was heard in the Federal Court of Australia. The plaintiff argued that the defendant's offer of compromise did not provide enough detail to be considered, and that the offer should be viewed in conjunction with offers made to other defendants. Additionally, the plaintiff contended that there had been a material change to their claim after the offer was made, and that it was relevant that the offer would not have resolved cross-claims between the defendants.

The central legal issues the court had to address were whether the offer of compromise was sufficiently particularised, whether the offers to different defendants should be considered together, whether there was a material change to the plaintiff's claim after the offer was made, and whether the fact that the offer would not have resolved cross-claims between the defendants was relevant. The court considered the relevant principles of law regarding offers of compromise and indemnity costs, as well as the particular circumstances of the case.

In reaching its decision, the court found that the offer of compromise was not sufficiently particularised, as it did not provide enough detail about the amount of the offer or the basis upon which it was made. The court also found that the offers to different defendants should be considered together, as they were part of the same negotiation process. Furthermore, the court held that there had been a material change to the plaintiff's claim after the offer was made, as the plaintiff had significantly increased their damages claim. Finally, the court determined that it was relevant that the offer would not have resolved the cross-claims between the defendants, as this demonstrated that the offer was not a genuine attempt to resolve the dispute.

As a result of the court's findings, Dymocks was not entitled to indemnity costs from Capral. The court ordered that the parties bear their own costs of the proceedings.

Orders