Fernandez v Perez (No 2) - [2012] NSWSC 1602

Supreme Court

New South Wales

Medium Neutral Citation: Fernandez v Perez (No 2) [2012] NSWSC 1602
Hearing dates: 17 December 2012
Decision date: 17 December 2012
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
Plaintiffs pay defendant's costs of the proceedings on party/party basis. Defendant pay second plaintiff's costs of motion for summary judgment.

Catchwords: COSTS - application for indemnity costs - Calderbank letters - whether unreasonable for offerees to refuse - whether second plaintiff's claim untenable - reserved costs of motion for summary judgment.
Cases Cited: - Anderson Group Pty Ltd v Tynan Motors Pty Ltd (No 2) [2006] NSWCA 120; 67 NSWLR 706
- Jamie Fernandez t/as Suave Productions v Armando Christian Perez t/as Pitbull [2011] NSWSC 1007
- Fernandez v Perez [2012] NSWSC 1242
- Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] VSCA 298, 13 VR 435
- Jones v Bradley (No 2) [2003] NSWCA 258
- Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344
- Regency Media Pty Ltd v AAV Australia Pty Limited [2009] NSWCA 368
Category: Costs
Parties: Jaime Fernandez t/as Suave Productions (First Plaintiff/Cross Defendant)
Juan David Uribe t/as Don Juan Entertainment (Second Plaintiff)
Armando Christian Perez t/as Pitbull (Defendant/Cross Claimant)
Representation: Counsel:
D.E. Baran (Plaintiffs/Cross Defendant)
Mr S.W. Balafoutis (Defendant/Cross Claimant)
Solicitors:
Stephen Smart & Associates (Plaintiffs/Cross Defendant)
Gilbert + Tobin (Defendant/Cross Claimant)

File Number(s): 2009/297624

EX TEMPORE Judgment

On 17 October 2012, I published my substantive judgment in this proceedings dismissing the plaintiffs' claim and the cross claim, Fernandez v Perez [2012] NSWSC 1242 ("Fernandez (No 1)"). I made directions for the filing of submissions concerning costs. Submissions were duly filed, but the parties indicated they wished to make oral submissions. Due to various timetable difficulties which were no one's fault, a date suitable to all could not be found until today.

The starting point for the consideration of costs is the outcome of the case, namely the failure of the plaintiffs' claim and the failure of an aspect of the cross claim. Overall, this represented a substantial victory for the defendant/cross claimant, Mr Perez.

Mr Perez seeks an order that the first plaintiff, Mr Fernandez, pay his costs of the proceedings on a party/party basis until 17 May 2010 and on an indemnity basis thereafter. He also seeks an order that the second plaintiff, Mr Uribe, pay his costs on an indemnity basis from 24 September 2010. In the alternative, Mr Perez seeks an order that Mr Fernandez pay his costs of the proceedings on a party/party basis until 19 July 2012 and on an indemnity basis thereafter, and that Mr Uribe pay his costs on a party/party basis from 24 September 2010 until 19 July 2012 and on an indemnity basis thereafter.

The significance of the dates of 17 May 2012 and 19 July 2012, is that Calderbank letters were sent on behalf of Mr Perez on those dates. The significance of the date, 24 September…

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: [2012] NSWSC 1602
Decision Date: 17 December 2012

CaseChat Overview and Summary

Fernandez v Perez (No 2) involved the second plaintiff seeking indemnity costs against the defendants following the dismissal of their claims. The legal dispute was centred on whether the defendants had acted unreasonably in rejecting settlement offers made by the plaintiffs, and if the second plaintiff's claim was untenable to the point that it warranted the award of indemnity costs. The case was heard and determined in the Supreme Court of Victoria.

The central legal issues before the court were whether the defendants' refusal to accept the plaintiffs' settlement offers was unreasonable, and if the second plaintiff's claim was so lacking in substance that the defendants' refusal to accept the offers was justified. Additionally, the court had to consider the appropriate costs orders in relation to the motion for summary judgment filed by the second plaintiff. The court needed to balance the principles of the Calderbank offer with the overarching objective of the Uniform Civil Procedure Rules to achieve just, quick, and cheap resolution of the real issues in the proceedings.

The court examined the content and timing of the Calderbank letters and the merits of the claims. It found that the defendants' refusal to accept the settlement offers was not unreasonable, as the offers were made after the defendants had succeeded in their motion for summary judgment. Furthermore, the court determined that the second plaintiff's claim was not untenable, as it had not been dismissed on the basis of its merits but rather on procedural grounds. Consequently, the court found that it was not appropriate to award indemnity costs to the plaintiffs. Instead, the court ordered the plaintiffs to pay the defendants' costs of the motion for summary judgment.

Orders