Eames v Shain (No 2)
[2012] ACTSC 122
•July 25, 2012
Rihannon Eames v Rebecca Shain (No 2)
[2012] ACTSC 122 (25 July 2012)
COSTS – Calderbank offer by defendant – plaintiff recovering less than amount offered
Calderbank v Calderbank [1975] 3 WLR 586
EX TEMPORE JUDGMENT
No. SC 78 of 2010
Judge: Sidis AJ
Supreme Court of the ACT
Date: 25 July 2012
IN THE SUPREME COURT OF THE )
) No. SC 78 of 2010
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:Rihannon Eames
Applicant
AND:Rebecca Shain
Respondent
ORDER
Judge: Sidis AJ
Date: 25 July 2012
Place: Canberra
THE COURT ORDERS THAT:
Order 2 of 20 July 2012 is varied to provide the defendant is to pay the plaintiff’s costs of the proceedings on a party and party basis up to and including 2 August 2011. The plaintiff is to pay the defendant’s costs on a party and party basis thereafter.
My reasons are published
- In this matter reasons for judgment were published on 20 July 2012 and the parties offered an opportunity to address the court further on the issue of costs. The preliminary order was that the defendant was to pay the plaintiff’s costs on an ordinary basis as agreed or assessed. The defendant appears before the court today and advised the court of the Calderbank offer forwarded to the plaintiff’s solicitors on 2 August 2011 in a sum that exceeded the amount that I awarded on 20 July 2012.
- The defendant therefore sought to vary the order to provide that the plaintiff pay her costs on a party and party basis up to and including 2 August 2011 and on an indemnity basis thereafter. I have heard considerable debate between the parties concerning the question of the manner in which I should exercise my discretion, having regard to the offer that was made.
- I have indicated that I have been influenced by the fact that the plaintiff in this case presented as having a form of psychological disorder that may well have influenced her to believe that the whole of her downward spiral in her life commenced from the date of the accident that was the subject of her claim. However, she was in possession of the information that was subsequently before the court, information that she did not provide to her lawyers. They did not have, as she did, the appropriate information before them upon which to make a reasoned assessment of the value of the offer that was put in August 2011.
- In those circumstances I considered that the defendant, having done its best to resolve the claim at an early stage, warranted some relief from the order for costs that was made on 20 July 2012. As a result, order 2 of 20 July 2012 is varied to provide the defendant is to pay the plaintiff’s costs of the proceedings on a party and party basis up to and including 2 August 2011. The plaintiff is to pay the defendant’s costs on a party and party basis thereafter.
- My reasons are published.
I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Acting Justice Sidis.
Associate: James Middleton
Date: 26 July 2012
Counsel for the Plaintiff: Mr A. Muller
Solicitor for the Plaintiff: Maliganis Edwards Johnson
Counsel for the Defendant: Mr D. Wilson
Solicitor for the Defendant: DLA Phillips Fox
Date of hearing: 25 July 2012
Date of judgment: 25 July 2012
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