COSTS – Whether unsuccessful respondent should pay successful appellant’s costs on an indemnity basis – Whether successful appellant should pay unsuccessful respondent’s costs – Reasonableness of refusal of settlement offers – Adverse credibility findings of appellant and respondent – Delays caused by appellant.
INTEREST – Whether interest payable on property adjustment – Whether penalty interest payable on damages – Whether interest payable on equitable compensation for breach of confidence – Delays caused by appellant and respondent.
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APPEARANCES:
Counsel
Solicitors
For the Appellant
Mr T D North SC Mr R K Davis
Carew Counsel
The Respondent appeared in person
MAXWELL ACJ ASHLEY JA NEAVE JA:
On 10 December 2008 the court delivered judgment in this matter and draft orders were distributed to the parties. The court reconvened on 12 March 2009. After hearing submissions on the draft orders, the court made orders that (among other things) required Mr Procopets to pay Ms Giller:
· $45,000 by way of adjustment of property interests under Part IX of the Property Law Act 1958 (Vic);
· $50,000 as damages for assault, of which $13,000 was awarded by way of exemplary damages;
· the sum of $40,000 for breach of confidence.
The hearing was adjourned so that submissions could be heard on costs and interest. Ms Giller and Mr Procopets (who is self represented) filed written submissions and the court heard argument on 1 April 2009.
Ms Giller’s submissions raise two main questions. These are whether -
·special costs orders should be made in her favour; and
·interest should be payable on the various awards made to her.
We deal with each of these questions in turn.
Costs
Submissions
Ms Giller’s counsel submitted that Mr Procopets should pay her costs of the trial and the appeal on an indemnity basis. In support of that submission they relied on an oral offer made to Mr Procopets on 19 February 2004, the eleventh day of the trial. Ms Giller initially offered to settle the proceedings for $200,000, inclusive of costs. Mr Procopets rejected the offer and made a counter-offer of $20,000. Ms Giller then made an offer to settle for $100,000, inclusive of costs. Mr Procopets rejected that offer also. On 23 February the solicitors for Ms Giller sent Mr Procopets a letter in the following terms:
We refer to the above matter and confirm that on 19th February, 2004, an offer was made on behalf of our client in the sum of $200,000 inclusive of all costs and which offer you rejected with a counter offer of $20,000 inclusive of all costs.
We also confirm that a further offer was then made on our client’s behalf in the sum of $100,000 inclusive of costs…
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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AGLC
Giller v Procopets (No 2) [2009] VSCA 72
Case
[2009] VSCA 72
Decision Date
CaseChat Overview and Summary
In this case, the appellant, Giller, appealed against the decision of the respondent, Procopets, in the Supreme Court of Queensland. The primary dispute centred on the calculation of costs and interest in the context of a property adjustment, damages, and equitable compensation for breach of confidence. The appellant argued for an indemnity basis for the costs, while the respondent contested this, asserting that the successful party should bear the costs of the unsuccessful party. The matter also involved the reasonableness of refusal of settlement offers and the adverse credibility findings made against both parties.
The legal issues the court had to decide included the appropriate basis for awarding costs, whether interest should be payable on the property adjustment, damages, and equitable compensation, and whether penalty interest should apply. The court had to consider the delays caused by both parties in the proceedings and how these affected the assessment of costs and interest. The reasoning of the court was grounded in established principles of costs and interest in Australian law, with particular attention to the conduct of the parties and the principles of fairness in the allocation of costs and interest.
The court found that the unsuccessful respondent should pay the successful appellant’s costs on an indemnity basis due to the unreasonable refusal of settlement offers and the appellant's delays. It held that interest should be payable on the property adjustment and damages from the date of the original judgment until satisfaction. However, it found that penalty interest was not applicable on the damages. Regarding equitable compensation for breach of confidence, the court ruled that interest should not be payable as it was not a debt or sum of money. The court also made adverse credibility findings against both parties, which influenced the decision on costs and interest.
The final orders included that the respondent pay the appellant's costs on an indemnity basis, interest on the property adjustment and damages from the date of the original judgment until satisfaction, and no penalty interest on the damages. The court also clarified that interest was not payable on the equitable compensation for breach of confidence.