Galea v Farrugia (No 2) - [2013] NSWCA 376

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Galea v Farrugia (No 2) [2013] NSWCA 376
Hearing dates: On the papers
Decision date: 13 November 2013
Before: Bathurst CJ at [1]
Macfarlan JA at [2]
Ward JA at [9]
Decision:
The respondents' Notice of Motion is dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: COSTS - successful respondents sought indemnity costs - UCPR r 20.26 offer of compromise and Calderbank offer to settle appeal on a "walk away basis" - inference that respondents had undertaken little work on the appeal when offers made - no genuine compromise offered - application refused
Cases Cited: Vagg v McPhee (No 2) [2013] NSWCA 126
Category: Costs
Parties: Paul Galea (First Appellant)
Mary Galea (Second Appellant)
Lepipi Pty Ltd (Third Appellant)
David Farrugia (First Respondent)
Mary Farrugia (Second Respondent)
J & L Cauchi Pty Ltd (Third Respondent)
Joe Cauchi (Fourth Respondent)
Representation: Counsel:
M J Neil QC (Appellants)
P Barham (First and Second Respondents)
J A Hogan-Doran (Third and Fourth Respondents)
Solicitors:
Mosca & Scott (Appellants)
NSW Compensation Lawyers (First and Second Respondents)
Balmain Lawyers (Third and Fourth Respondents)

File Number(s): CA 2012/82184
Decision under appeal

Jurisdiction:

9111

Citation:

Galea v Farrugia [2012] NSWSC 77

Date of Decision:

2012-02-21 00:00:00

Before:

Hislop J

File Number(s):

2003/91314

Judgment

BATHURST CJ: I agree with Macfarlan JA.

MACFARLAN JA: The Court delivered judgment on this appeal on 7 June 2013 ([2013] NSWCA 164), following a hearing on 10, 11 and 12 April 2013. It ordered that the appeal be dismissed and that the appellants pay the first and second respondents' (referred to below as the "respondents") costs of the appeal.

By Notice of Motion filed on 17 June 2013, the respondents seek a variation of this costs order. As explained in their written submissions, they seek "costs on the usual party/party basis until 9.00 am on 27 June 2012 and indemnity costs thereafter, alternatively costs on the usual basis until 9.00 am on 7 December 2012 and indemnity costs thereafter". They rely upon an Offer of Compromise, served on 26 June 2012, offering to settle the appeal on a "walk away basis", that is, that the appeal be dismissed with the parties bearing their own costs. In the alternative they rely upon a Calderbank letter of 6 December 2012 making the same offer. Neither offer was accepted.

The appeal was from a judgment of Hislop J of 21 February 2012. The appellants' Notice of Appeal was filed on 18 May 2012. Their written submissions (in their unamended form) were filed on 15 August 2012, with their…

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 Galea v Farrugia (No 2)

Details

AGLC: Galea v Farrugia (No 2) [2013] NSWCA 376
Case: [2013] NSWCA 376
Decision Date: 13 November 2013

CaseChat Overview and Summary

In *Galea v Farrugia (No 2)*, the Court of Appeal of New South Wales considered an application by the successful respondents for indemnity costs. The respondents sought these costs on the basis of an offer of compromise made pursuant to rule 20.26 of the Uniform Civil Procedure Rules 2005 (NSW) and a *Calderbank* offer, both of which proposed settling the appeal on a "walk away basis".

The central legal issue before the Court was whether the respondents were entitled to indemnity costs given their offers to settle. This required the Court to determine if the offers constituted a genuine compromise and whether the circumstances warranted departing from the usual order for costs.

The Court reasoned that the respondents' offers, made at a stage where it could be inferred they had undertaken little work on the appeal, did not represent a genuine attempt at compromise. The "walk away basis" was interpreted as an indication that the respondents were not seeking to resolve the substantive dispute but rather to avoid further engagement. Consequently, the Court concluded that the offers did not meet the threshold for awarding indemnity costs.

Accordingly, the respondents' Notice of Motion seeking indemnity costs was dismissed, with the respondents ordered to pay the costs of the application.

Orders

Orders of the court

The respondents' Notice of Motion is dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

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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Medium Neutral Citation:	Galea v Farrugia (No 2) [2013] NSWCA 376
Hearing dates:	On the papers
Decision date:	13 November 2013
Before:	Bathurst CJ at [1] Macfarlan JA at [2] Ward JA at [9]
Decision:	The respondents' Notice of Motion is dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	COSTS - successful respondents sought indemnity costs - UCPR r 20.26 offer of compromise and Calderbank offer to settle appeal on a "walk away basis" - inference that respondents had undertaken little work on the appeal when offers made - no genuine compromise offered - application refused
Cases Cited:	Vagg v McPhee (No 2) [2013] NSWCA 126
Category:	Costs
Parties:	Paul Galea (First Appellant) Mary Galea (Second Appellant) Lepipi Pty Ltd (Third Appellant) David Farrugia (First Respondent) Mary Farrugia (Second Respondent) J & L Cauchi Pty Ltd (Third Respondent) Joe Cauchi (Fourth Respondent)
Representation:	Counsel: M J Neil QC (Appellants) P Barham (First and Second Respondents) J A Hogan-Doran (Third and Fourth Respondents) Solicitors: Mosca & Scott (Appellants) NSW Compensation Lawyers (First and Second Respondents) Balmain Lawyers (Third and Fourth Respondents)
File Number(s):	CA 2012/82184
Decision under appeal	Jurisdiction: 9111 Citation: Galea v Farrugia [2012] NSWSC 77 Date of Decision: 2012-02-21 00:00:00 Before: Hislop J File Number(s): 2003/91314