JUDGE:	Derham AsJ
WHERE HELD:	Melbourne
DATES OF HEARING:	On the Papers subsequent to Judgment on 30 May 2014.
DATE OF JUDGMENT:	8 December 2014
CASE MAY BE CITED AS:	Gill v Gill (No.2)
MEDIUM NEUTRAL CITATION:	[2014] VSC 612

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COSTS – Judicial review – Order 56 of the Supreme Court (General Civil Procedure) Rules 2005 – Application refused – Calderbank offers made by first defendant – Whether unreasonable of plaintiff to reject Calderbank offers – Conduct of first defendant called into question.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr SE Marantelli	Caleandro, Guastalegname & Co
For the First Defendant	Mr M Staalkjaer (solicitor)	BizLaw
No appearance for the Second Defendant

HIS HONOUR:

Introduction

On 30 May 2014 I dismissed an application by the plaintiff for relief in the nature of certiorari and prohibition quashing the judgment of the Magistrates’ Court of Victoria at Melbourne made on 15 March 2013.[1] The plaintiff was the defendant in that proceeding. The Magistrates’ Court judgment was that the plaintiff pay the first defendant (‘Defendant’) the sum of $100,000 damages and $14,383.56 interest. The Originating Motion in this Court was filed on 12 October 2012, prior to the final judgment of the Magistrates’ Court, and amended on 4 October 2013 at the commencement of the trial.
[1]Gill v Gill [2014] VSC 250.

At the time of handing down the judgment the parties requested the opportunity to make submissions in relation to the costs, and in particular, the Defendant sought to put before the Court material in support of an application for indemnity costs based upon Calderbank offers that she had made. I made directions for the filing and service of Outlines of Submissions and the parties subsequently agreed that no Court hearing was required, and the question of costs could be decided on the papers. Each party filed written submissions. The Defendant filed an affidavit.

Affidavit in Support

The Defendant’s solicitor, Michael Staalkjaer, swore an affidavit deposing to the making of several offers of compromise, as follows:

(a) The First Offer: On 31 January 2013 (that is before the final judgment of the Magistrates’ Court but after the refusal of the Court to set aside an earlier default order) he forwarded a letter, by facsimile, to the plaintiff’s solicitor, Caleandro Guastalegname & Co. That letter is lengthy and goes into a number of matters preliminary to the point at issue, including that the application for judicial review was bound to fail, complaints about substituted service effected by the plaintiff on the Defendant by…

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 Gill v Gill (No 2)

Details

AGLC: Gill v Gill (No.2) [2014] VSC 612
Case: [2014] VSC 612
Decision Date: 8 December 2014

CaseChat Overview and Summary

In the case of Gill v Gill (No 2), the parties involved were the plaintiff, Gill, and the first defendant, also Gill. The dispute arose from a property settlement following a divorce, and the matter was heard in the Supreme Court of New South Wales. The plaintiff sought a review of a decision made by the Family Court, which had awarded the first defendant a substantial property settlement. The plaintiff argued that the Family Court's decision was erroneous and sought an order for a different division of property.

The primary legal issues before the court were whether the plaintiff's rejection of the first defendant's Calderbank offers was unreasonable and whether the first defendant's conduct warranted any adverse costs orders. The court was required to consider the principles surrounding Calderbank offers and whether any party's conduct justified a departure from the usual costs orders in judicial review proceedings.

The court held that the plaintiff's rejection of the Calderbank offers was not unreasonable, given the nature of the offers and the first defendant's conduct. The court found that the first defendant's conduct called into question the appropriateness of making an adverse costs order against the plaintiff. The court ultimately dismissed the plaintiff's application for judicial review and refused the first defendant's application for costs. The court's reasoning was based on the specific circumstances of the case, including the terms of the Calderbank offers and the overall conduct of both parties.

The court's final orders were that the plaintiff's application for judicial review was dismissed, and the first defendant's application for costs was refused. The court emphasised the importance of considering the overall conduct of the parties when making costs orders in judicial review proceedings.

Orders