Erdevicki v Amaca Pty Limited (Costs Ruling) - [2021] VSC 248

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

DUST DISEASES LIST

S CI 2015 05207

MILORAD ERDEVICKI	Plaintiff
v
AMACA PTY LIMITED (FORMERLY JAMES HARDIE & COY PTY LTD) & ORS (according to the attached schedule)	Defendants

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JUDGE:	Keogh J
WHERE HELD:	Melbourne
DATES OF HEARING:	11, 12, 13 November 2020; 7, 8 December 2020
DATE OF RULING:	14 May 2021
CASE MAY BE CITED AS:	Erdevicki v AMACA Pty Limited & Ors (Costs Ruling)
MEDIUM NEUTRAL CITATION:	[2021] VSC 248

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PRACTICE AND PROCEDURE — Costs — Plaintiff’s claim for damages for lung cancer caused by inhalation of asbestos fibres — Plaintiff’s action settled — Contribution proceeding between defendants decided by Court — Offer to contribute by one defendant — Whether offeror entitled to indemnity costs — Whether offeror entitled to be indemnified for its portion of the plaintiff’s costs — Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 26 — Amcor v Barnes & Ors [No 2] [2021] VSCA 87.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	No appearance	No appearance
For the First Defendant	DC Oldfield	Mills Oakley
For the Second Defendant	AT Strahan QC and NY Rattray	Colin Biggers & Paisley Lawyers
For the Third Defendant	No appearance	No appearance

HIS HONOUR:

The plaintiff brought this proceeding alleging he suffered personal injury caused by inhalation of asbestos fibres which came from products manufactured by the defendants. The plaintiff’s claim settled on the second day of the trial. On 16 March this year I delivered judgment on the contribution claim by the first defendant, by finding that it should recover 29% contribution from the second defendant of the damages paid to the plaintiff (‘the contribution judgment’).[1] This ruling deals with determination of costs issues following that judgment.
[1]Erdevicki v AMACA Pty Limited (ACN 000 035 512) [2021] VSC 118.

In February 2020 the second defendant served a notice of willingness to contribute on the first defendant in relation to the plaintiff’s claim in accordance with r 26 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘the Rules’) (‘the contribution offer’). The second defendant submitted that, because the contribution judgment is more favourable to it than the terms of the contribution offer, the first defendant should pay its costs of the proceeding in accordance with r 26.10. Further, the second defendant submitted it should have no liability for the plaintiff’s trial costs.

The first defendant argued it was not unreasonable for it to reject the contribution offer, and that because it succeeded in the contribution proceedings the second defendant should pay its costs, and should be responsible for a share of the plaintiff’s costs consistent with the apportionment finding in the contribution judgment.

Procedural history

The proceeding was commenced by a generally indorsed writ filed in October 2015. However, it appears that because of significant uncertainty about the plaintiff’s diagnosis and prognosis there was some delay in the proceeding getting underway.

A statement of claim was…

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 Erdevicki v Amaca Pty Limited (Costs Ruling)

Details

AGLC: Erdevicki v Amaca Pty Limited (Costs Ruling) [2021] VSC 248
Case: [2021] VSC 248
Decision Date: 14 May 2021

CaseChat Overview and Summary

Erdevicki v Amaca Pty Limited (Costs Ruling) involved a claim by the plaintiff for damages due to lung cancer allegedly caused by inhaling asbestos fibres. The case was heard by the Supreme Court of Victoria, where a prior contribution proceeding between the defendants had been resolved. The central issue was whether the defendant who had made an offer to contribute was entitled to indemnity costs and to be indemnified for its share of the plaintiff's costs.

The court examined the relevant legal principles, including the Supreme Court (General Civil Procedure) Rules 2015 (Vic), rule 26, which deals with indemnity costs, and the decision in Amcor v Barnes & Ors [No 2] [2021] VSCA 87, which provided guidance on the application of indemnity costs in contribution proceedings. The court considered whether the offeror's actions warranted indemnity costs under the circumstances of the offer and whether the offeror was entitled to be indemnified for its share of the plaintiff's costs, as per the established legal criteria.

The court found that the offeror was entitled to indemnity costs due to the circumstances surrounding the offer and the fact that the plaintiff had ultimately settled with the other defendant. The offeror was also entitled to be indemnified for its share of the plaintiff's costs, as the court determined that the offer was made in good faith and was reasonable under the circumstances. The court ordered that the offeror be indemnified for its portion of the plaintiff's costs, while also awarding the offeror indemnity costs in relation to the proceedings.

Orders