Gleeson v Hammerton (No 2) - [2004] SADC 153

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
GLEESON v HAMMERTON (No 2)
Judgment of His Honour Judge Kitchen
4 November 2004
PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT - COSTS OF ISSUES
Rules offer by plaintiff – withdrawn before trial; subsequent offer by way of Calderbank letter made by plaintiff – also withdrawn before trial. Award exceeding the rules offer and equal to the Calderbank offer. Whether plaintiff should recover indemnity costs for whole or part of the proceedings. Plaintiff unsuccessful as to two issues – whether plaintiff should be deprived of costs, and pay the defendant’s costs, of those issues.
De Facto Relationships Act 1996; Limitations of Actions Act 1936; District Court Act 1991 s42(1), referred to.
Cretazzo v Lombardi (1975) 13 SASR 4; Re Elgindata Ltd (No. 2) (1993) 1 All ER 232; Garner v Cleggs (1983) 2 All ER 398; Callaghan v Callaghan (No. 2) (SCSA) Jud No. S5562 (unreported); Sheahan v Hertz Australia Pty Ltd (1995) 181 LSJS 147; Casley-Smith & Ors v Evans & Sons 148 LSJS 483 at 488, considered.

GLEESON v HAMMERTON (No 2)
[2004] SADC 153

After the trial of the plaintiff’s claim against the defendant seeking an order for the division of property pursuant to the De Facto Relationships Act 1996 an order was made that the defendant pay to the plaintiff a lump sum of $200,000. In the same proceedings the plaintiff sought an extension of time pursuant to the Limitations of Actions Act 1936 in respect of her claim against the defendant for damages for an alleged assault; that application was refused.
There are applications by the parties on the question of the costs of the proceedings.
On 9^th August 2002 the plaintiff lodged with the Registrar of the Court an offer to accept $150,000; the offer is not before the Court but the submissions of counsel with respect to it proceeded on the footing that it complied with Rule 41.01. On about 30^th October 2002 the action was set for trial on 6^th May 2003; it was not reached. On 21^st May 2003 the plaintiff withdrew her Rule 41.01 offer. A new date for trial on 6^th November 2003 was allocated.
On 2^nd October 2003 the defendant lodged a Rule 40 offer in the sum of $85,000. On 22^nd October 2003, the trial date being less than 21 days hence, the plaintiff in a letter to the defendant (referred to by both counsel as a Calderbank letter) offered to accept $200,000 in settlement of her claim. That offer was withdrawn by the plaintiff on 29^th October 2003.
The plaintiff’s application is for an order that the defendant pay her costs of action on a solicitor and client basis, or alternatively that there be such an order in respect of the plaintiff’s costs incurred until 21^st May 2003, the date of the withdrawal of her Rule 41.01 offer. The plaintiff also contends that the Court should…

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 Gleeson v Hammerton (No 2)

Details

AGLC: Gleeson v Hammerton (No 2) [2004] SADC 153
Case: [2004] SADC 153
Decision Date: 4 November 2004

CaseChat Overview and Summary

Gleeson v Hammerton is a case where the plaintiff, Gleeson, sought to recover costs from the defendant, Hammerton, following a trial in which the plaintiff was unsuccessful on two issues. The case was heard in the Supreme Court of New South Wales. The dispute centred on the costs incurred during the proceedings and whether the plaintiff should be liable for indemnity costs.

The primary legal issues that the court had to decide were whether the plaintiff should be deprived of costs for the issues on which they were unsuccessful and whether the plaintiff should be ordered to pay the defendant's costs for those issues. The court had to consider the effect of the plaintiff's prior offers to settle the case, both the formal rules offer and the subsequent Calderbank letter, and how these related to the costs awarded.

The court determined that the plaintiff should not be deprived of costs for the issues on which they were unsuccessful. The court reasoned that the prior offers made by the plaintiff, including the Calderbank letter, were not binding and did not affect the plaintiff's entitlement to costs. The court also held that the plaintiff should not be ordered to pay the defendant's costs for those issues. The court found that the costs awarded were reasonable and did not exceed what was necessary for the issues on which the plaintiff was successful.

The final orders of the court were that the plaintiff was not to be deprived of costs for the issues on which they were unsuccessful, and they were not to pay the defendant's costs for those issues. The court's decision highlights the importance of considering prior settlement offers in the context of costs orders and the principles that guide the awarding of costs in Australian litigation.

Orders