Gove v Black
[2006] WASC 298 (S)
•21 DECEMBER 2006
GOVE -v- BLACK & ORS [2006] WASC 298 (S)
| Link to Appeal : | [2009] WASCA 181 [2009] WASCA 181(S) |
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASC 298 (S) | |
| Case No: | CIV:2375/1997 | 6-9 & 13-21 NOVEMBER 2006, 14 FEBRUARY & 1 MARCH 2007 | |
| Coram: | TEMPLEMAN J | 20/12/06 | |
| 22/03/07 | |||
| 48 | Judgment Part: | 1 of 1 | |
| Result: | See draft order appended to these reasons | ||
| A | |||
| PDF Version |
| Parties: | SHARON LEE GOVE RICHARD ASH BLACK ASH INVESTMENTS PTY LTD (ACN 007 949 395) THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175) CITY OF FREMANTLE DREXEL LONDON (A FIRM) HALPERN GLICK PTY LTD (ACN 008 729 204) BARNABY PIERRE COLIN WOOD PAUL CHARLES BLACKMAN KYLE THEODORE PETERS MICHAEL ANTONY KUBA SHELLEY MERRILYN GOLLAN MARYANNE FIORE MIA LEE FARINOSI TINA ELIZABETH D'CASTRO JULIETTE CHLOE VIRGINIE WOOD DEAN DAVID HOLM GRAHAM IAN ROBERT MICHEL REGNARD DANNIELLE DORISSE ELIZABETH BECKWITH NIGEL KENNETH GILES MARC DREXEL ROBYN LESLEY DREXEL NEIL ALEXANDER GRANT |
Catchwords: | Torts Costs Whether Sanderson or Bullock orders Extent to which any conduct of unsuccessful defendants shows it was reasonable to join successful defendants Effect of alleging independent causes of action Torts Negligence Plaintiff sues six defendants Two defendants held liable Contribution between defendants Comparison of culpability Costs Whether indemnity costs flow from Calderbank offers Effect of acceptance being an abandonment instead of a compromise Lack of evidence on how declining an offer was unreasonable Determining costs in quasirepresentative proceedings |
Legislation: | Nil |
Case References: | Altamura v Victorian Railways Commissioners [1974] VR 33 Atkins v Purslowe [1966] WAR 46 Bankamerica Finance Ltd v Nock [1988] AC 1002 Bullock v The London General Omnibus Company [1907] 1 KB 264 Christofidellis v Zdrilic [2000] FCA 679 Den Hoedt v Barwick [2006] WASCA 196 Dobb v Hacket (1993) 10 WAR 532 Duncan & Weller Pty Ltd v Mendelson [1989] VR 386 Fennell v Supervision & Engineering Services Holdings Pty Ltd (1988) 47 SASR 6 Fimiston Mining NL v Western Reefs Ltd (1996) 14 WAR 387 Grbavac v Hart [1997] 1 VR 154 Johnsons Tyne Foundry Pty Ltd v Maffra Corporation (1948) 77 CLR 544 Jones v Bartlett (2000) 205 CLR 166 Kingswood Golf Club Ltd v Smith [2005] VSCA 224 Mayer v Harte [1960] 1 WLR 770 NMFM Property Pty Ltd v Citibank Ltd (No 11) (2001) 109 FCR 77 Norwest Refrigeration Services Pty Ltd v Bain Dawes (WA) Pty Ltd (1984) 157 CLR 149 Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529 Sanko Steamship Company Ltd v Sumitomo Australia Ltd, unreported; Fed C of A (Sheppard J); 7 February 1996 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
DECISION : 23 MARCH 2007 FILE NO/S : CIV 2375 of 1997 BETWEEN : SHARON LEE GOVE
- Plaintiff
AND
RICHARD ASH BLACK
First Defendant
ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant
THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant
CITY OF FREMANTLE
Fourth Defendant
DREXEL LONDON (A FIRM)
Fifth Defendant
HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Defendant
(Page 2)
FILE NO/S : CIV 2370 of 1997 BETWEEN : BARNABY PIERRE COLIN WOOD
- Plaintiff
AND
RICHARD ASH BLACK
First Defendant
ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant
THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant
CITY OF FREMANTLE
Fourth Defendant
DREXEL LONDON (A FIRM)
Fifth Defendant
HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Defendant
- Plaintiff
AND
RICHARD ASH BLACK
First Defendant
ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant
THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant
CITY OF FREMANTLE
Fourth Defendant
DREXEL LONDON (A FIRM)
Fifth Defendant
HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Defendant
- Plaintiff
AND
RICHARD ASH BLACK
First Defendant
ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant
THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant
CITY OF FREMANTLE
Fourth Defendant
DREXEL LONDON (A FIRM)
Fifth Defendant
HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Defendant
(Page 4)
FILE NO/S : CIV 2374 of 1997 BETWEEN : MICHAEL ANTONY KUBA
- Plaintiff
AND
RICHARD ASH BLACK
First Defendant
ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant
THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant
CITY OF FREMANTLE
Fourth Defendant
DREXEL LONDON (A FIRM)
Fifth Defendant
HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Defendant
- Plaintiff
AND
RICHARD ASH BLACK
First Defendant
ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant
THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant
CITY OF FREMANTLE
Fourth Defendant
DREXEL LONDON (A FIRM)
Fifth Defendant
HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Defendant
- Plaintiff
AND
RICHARD ASH BLACK
First Defendant
ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant
THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant
CITY OF FREMANTLE
Fourth Defendant
DREXEL LONDON (A FIRM)
Fifth Defendant
HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Defendant
(Page 6)
FILE NO/S : CIV 2378 of 1997 BETWEEN : MIA LEE FARINOSI
- Plaintiff
AND
RICHARD ASH BLACK
First Defendant
ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant
THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant
CITY OF FREMANTLE
Fourth Defendant
DREXEL LONDON (A FIRM)
Fifth Defendant
HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Defendant
- Plaintiff
AND
RICHARD ASH BLACK
First Defendant
ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant
THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant
CITY OF FREMANTLE
Fourth Defendant
DREXEL LONDON (A FIRM)
Fifth Defendant
HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Defendant
- Plaintiff
AND
RICHARD ASH BLACK
First Defendant
ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant
THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant
CITY OF FREMANTLE
Fourth Defendant
DREXEL LONDON (A FIRM)
Fifth Defendant
HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Defendant
(Page 8)
FILE NO/S : CIV 2398 of 1997 BETWEEN : DEAN DAVID HOLM GRAHAM
- Plaintiff
AND
RICHARD ASH BLACK
First Defendant
ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant
THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant
CITY OF FREMANTLE
Fourth Defendant
DREXEL LONDON (A FIRM)
Fifth Defendant
HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Defendant
- Plaintiff
AND
RICHARD ASH BLACK
First Defendant
ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant
THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant
CITY OF FREMANTLE
Fourth Defendant
DREXEL LONDON (A FIRM)
Fifth Defendant
HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Defendant
- Plaintiff
AND
RICHARD ASH BLACK
First Defendant
ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant
THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant
CITY OF FREMANTLE
Fourth Defendant
DREXEL LONDON (A FIRM)
Fifth Defendant
HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Defendant
(Page 10)
FILE NO/S : CIV 2413 of 1997 BETWEEN : NIGEL KENNETH GILES
- Plaintiff
AND
RICHARD ASH BLACK
First Defendant
ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant
THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant
CITY OF FREMANTLE
Fourth Defendant
DREXEL LONDON (A FIRM)
Fifth Defendant
HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Defendant
- Plaintiff
AND
RICHARD ASH BLACK
First Defendant
ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant
THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant
CITY OF FREMANTLE
Fourth Defendant
HALPERN GLICK PTY LTD (ACN 008 729 204)
Fifth Defendant
- Plaintiff
AND
RICHARD ASH BLACK
First Defendant
ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant
THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant
CITY OF FREMANTLE
Fourth Defendant
HALPERN GLICK PTY LTD (ACN 008 729 204)
Fifth Defendant
- Plaintiff
AND
RICHARD ASH BLACK
First Defendant
ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant
THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant
CITY OF FREMANTLE
Fourth Defendant
DREXEL LONDON (A FIRM)
Fifth Defendant
HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Defendant
Catchwords:
Torts - Costs - Whether Sanderson or Bullock orders - Extent to which any conduct of unsuccessful defendants shows it was reasonable to join successful defendants - Effect of alleging independent causes of action
Torts - Negligence - Plaintiff sues six defendants - Two defendants held liable - Contribution between defendants - Comparison of culpability
Costs - Whether indemnity costs flow from Calderbank offers - Effect of acceptance being an abandonment instead of a compromise - Lack of evidence on how declining an offer was unreasonable - Determining costs in quasirepresentative proceedings
Legislation:
Nil
Result:
See draft order appended to these reasons
Category: A
(Page 13)
Representation:
CIV 2375 of 1997
Counsel:
Plaintiff : Mr J G Staude
First Defendant : Mr P B O'Neal (14 February); no appearance (1 March)
Second Defendant : Mr S V Forbes & Mr M L Greenland (14 February); no appearance (1 March)
Third Defendant : Mr C L Hollett (14 February); no appearance (1 March)
Fourth Defendant : Mr M H Zilko SC
Fifth Defendant : Mr P Mendelow
Sixth Defendant : Mr C P Stevenson (14 February); Mr S F Popperwell (1 March)
Solicitors:
Plaintiff : Talbot & Olivier
First Defendant : Downings Legal
Second Defendant : Greenland Brooksby
Third Defendant : Phillips Fox
Fourth Defendant : John Eller
Fifth Defendant : Jackson McDonald
Sixth Defendant : Pynt & Partners
CIV 2370 of 1997
Counsel:
Plaintiff : Mr J G Staude
First Defendant : Mr P B O'Neal (14 February); no appearance (1 March)
Second Defendant : Mr S V Forbes & Mr M L Greenland (14 February); no appearance (1 March)
Third Defendant : Mr C L Hollett (14 February); no appearance (1 March)
Fourth Defendant : Mr M H Zilko SC
Fifth Defendant : Mr P Mendelow
Sixth Defendant : Mr C P Stevenson (14 February); Mr S F Popperwell (1 March)
(Page 14)
Solicitors:
Plaintiff : Talbot & Olivier
First Defendant : Downings Legal
Second Defendant : Greenland Brooksby
Third Defendant : Phillips Fox
Fourth Defendant : John Eller
Fifth Defendant : Jackson McDonald
Sixth Defendant : Pynt & Partners
CIV 2371 of 1997
Counsel:
Plaintiff : Mr J G Staude
First Defendant : Mr P B O'Neal (14 February); no appearance (1 March)
Second Defendant : Mr S V Forbes & Mr M L Greenland (14 February); no appearance (1 March)
Third Defendant : Mr C L Hollett (14 February); no appearance (1 March)
Fourth Defendant : Mr M H Zilko SC
Fifth Defendant : Mr P Mendelow
Sixth Defendant : Mr C P Stevenson (14 February); Mr S F Popperwell (1 March)
Solicitors:
Plaintiff : Talbot & Olivier
First Defendant : Downings Legal
Second Defendant : Greenland Brooksby
Third Defendant : Phillips Fox
Fourth Defendant : John Eller
Fifth Defendant : Jackson McDonald
Sixth Defendant : Pynt & Partners
(Page 15)
CIV 2373 of 1997
Counsel:
Plaintiff : Mr M E Herron
First Defendant : Mr P B O'Neal (14 February); no appearance (1 March)
Second Defendant : Mr S V Forbes & Mr M L Greenland (14 February); no appearance (1 March)
Third Defendant : Mr C L Hollett (14 February); no appearance (1 March)
Fourth Defendant : Mr M H Zilko SC
Fifth Defendant : Mr P Mendelow
Sixth Defendant : Mr C P Stevenson (14 February); Mr S F Popperwell (1 March)
Solicitors:
Plaintiff : Chris Phillips
First Defendant : Downings Legal
Second Defendant : Greenland Brooksby
Third Defendant : Phillips Fox
Fourth Defendant : John Eller
Fifth Defendant : Jackson McDonald
CIV 2374 of 1997
Counsel:
Plaintiff : Mr M E Herron
First Defendant : Mr P B O'Neal (14 February); no appearance (1 March)
Second Defendant : Mr S V Forbes & Mr M L Greenland (14 February); no appearance (1 March)
Third Defendant : Mr C L Hollett (14 February); no appearance (1 March)
Fourth Defendant : Mr M H Zilko SC
Fifth Defendant : Mr P Mendelow
Sixth Defendant : Mr C P Stevenson (14 February); Mr S F Popperwell (1 March)
(Page 16)
Solicitors:
Plaintiff : Chris Phillips
First Defendant : Downings Legal
Second Defendant : Greenland Brooksby
Third Defendant : Phillips Fox
Fourth Defendant : John Eller
Fifth Defendant : Jackson McDonald
Sixth Defendant : Pynt & Partners
CIV 2376 of 1997
Counsel:
Plaintiff : Mr M E Herron
First Defendant : M P B O'Neal (14 February); no appearance (1 March)
Second Defendant : Mr S V Forbes & Mr M L Greenland (14 February); no appearance (1 March)
Third Defendant : Mr C L Hollett (14 February); no appearance (1 March)
Fourth Defendant : Mr M H Zilko SC
Fifth Defendant : Mr P Mendelow
Sixth Defendant : Mr C P Stevenson (14 February); Mr S F Popperwell (1 March)
Solicitors:
Plaintiff : Chris Phillips
First Defendant : Downings Legal
Second Defendant : Greenland Brooksby
Third Defendant : Phillips Fox
Fourth Defendant : John Eller
Fifth Defendant : Jackson McDonald
Sixth Defendant : Pynt & Partners
(Page 17)
CIV 2377 of 1997
Counsel:
Plaintiff : Mr M E Herron
First Defendant : Mr P B O'Neal (14 February); no appearance (1 March)
Second Defendant : Mr S V Forbes & Mr M L Greenland (14 February); no appearance (1 March)
Third Defendant : Mr C L Hollett (14 February); no appearance (1 March)
Fourth Defendant : Mr M H Zilko SC
Fifth Defendant : Mr P Mendelow
Sixth Defendant : Mr C P Stevenson (14 February); Mr S F Popperwell (1 March)
Solicitors:
Plaintiff : Chris Phillips
First Defendant : Downings Legal
Second Defendant : Greenland Brooksby
Third Defendant : Phillips Fox
Fourth Defendant : John Eller
Fifth Defendant : Jackson McDonald
Sixth Defendant : Pynt & Partners
CIV 2378 of 1997
Counsel:
Plaintiff : Mr J G Staude
First Defendant : Mr P B O'Neal (14 February); no appearance (1 March)
Second Defendant : Mr S V Forbes & Mr M L Greenland (14 February); no appearance (1 March)
Third Defendant : Mr C L Hollett (14 February); no appearance (1 March)
Fourth Defendant : Mr M H Zilko SC
Fifth Defendant : Mr P Mendelow
Sixth Defendant : Mr C P Stevenson (14 February); Mr S F Popperwell (1 March)
(Page 18)
Solicitors:
Plaintiff : Talbot & Olivier
First Defendant : Downings Legal
Second Defendant : Greenland Brooksby
Third Defendant : Phillips Fox
Fourth Defendant : John Eller
Fifth Defendant : Jackson McDonald
Sixth Defendant : Pynt & Partners
CIV 2381 of 1997
Counsel:
Plaintiff : Mr M E Herron
First Defendant : Mr P B O'Neal (14 February); no appearance (1 March)
Second Defendant : Mr S V Forbes & Mr M L Greenland (14 February); no appearance (1 March)
Third Defendant : Mr C L Hollett (14 February); no appearance (1 March)
Fourth Defendant : Mr M H Zilko SC
Fifth Defendant : Mr P Mendelow
Sixth Defendant : Mr C P Stevenson (14 February); Mr S F Popperwell (1 March)
Solicitors:
Plaintiff : Chris Phillips
First Defendant : Downings Legal
Second Defendant : Greenland Brooksby
Third Defendant : Phillips Fox
Fourth Defendant : John Eller
Fifth Defendant : Jackson McDonald
(Page 19)
CIV 2382 of 1997
Counsel:
Plaintiff : Mr J G Staude
First Defendant : Mr P B O'Neal (14 February); no appearance (1 March)
Second Defendant : Mr S V Forbes & Mr M L Greenland (14 February); no appearance (1 March)
Third Defendant : Mr C L Hollett (14 February); no appearance (1 March)
Fourth Defendant : Mr M H Zilko SC
Fifth Defendant : Mr P Mendelow
Sixth Defendant : Mr C P Stevenson (14 February); Mr S F Popperwell (1 March)
Solicitors:
Plaintiff : Talbot & Olivier
First Defendant : Downings Legal
Second Defendant : Greenland Brooksby
Third Defendant : Phillips Fox
Fourth Defendant : John Eller
Fifth Defendant : Jackson McDonald
Sixth Defendant : Pynt & Partners
CIV 2398 of 1997
Counsel:
Plaintiff : Mr M E Herron
First Defendant : Mr P B O'Neal (14 February); no appearance (1 March)
Second Defendant : Mr S V Forbes & Mr M L Greenland (14 February); no appearance (1 March)
Third Defendant : Mr C L Hollett (14 February); no appearance (1 March)
Fourth Defendant : Mr M H Zilko SC
Fifth Defendant : Mr P Mendelow
Sixth Defendant : Mr C P Stevenson (14 February); Mr S F Popperwell (1 March)
(Page 20)
Solicitors:
Plaintiff : Chris Phillips
First Defendant : Downings Legal
Second Defendant : Greenland Brooksby
Third Defendant : Phillips Fox
Fourth Defendant : John Eller
Fifth Defendant : Jackson McDonald
Sixth Defendant : Pynt & Partners
CIV 2411 of 1997
Counsel:
Plaintiff : Mr J G Staude
First Defendant : Mr P B O'Neal (14 February); no appearance (1 March)
Second Defendant : Mr S V Forbes & Mr M L Greenland (14 February); no appearance (1 March)
Third Defendant : Mr C L Hollett (14 February); no appearance (1 March)
Fourth Defendant : Mr M H Zilko SC
Fifth Defendant : Mr P Mendelow
Sixth Defendant : Mr C P Stevenson (14 February); Mr S F Popperwell (1 March)
Solicitors:
Plaintiff : Talbot & Olivier
First Defendant : Downings Legal
Second Defendant : Greenland Brooksby
Third Defendant : Phillips Fox
Fourth Defendant : John Eller
Fifth Defendant : Jackson McDonald
Sixth Defendant : Pynt & Partners
(Page 21)
CIV 2412 of 1997
Counsel:
Plaintiff : Mr M E Herron
First Defendant : Mr P B O'Neal (14 February); no appearance (1 March)
Second Defendant : Mr S V Forbes & Mr M L Greenland (14 February); no appearance (1 March)
Third Defendant : Mr C L Hollett (14 February); no appearance (1 March)
Fourth Defendant : Mr M H Zilko SC
Fifth Defendant : Mr P Mendelow
Sixth Defendant : Mr C P Stevenson (14 February); Mr S F Popperwell (1 March)
Solicitors:
Plaintiff : Chris Phillips
First Defendant : Downings Legal
Second Defendant : Greenland Brooksby
Third Defendant : Phillips Fox
Fourth Defendant : John Eller
Fifth Defendant : Jackson McDonald
Sixth Defendant : Pynt & Partners
CIV 2413 of 1997
Counsel:
Plaintiff : Mr J G Staude
First Defendant : Mr P B O'Neal (14 February); no appearance (1 March)
Second Defendant : Mr S V Forbes & Mr M L Greenland (14 February); no appearance (1 March)
Third Defendant : Mr C L Hollett (14 February); no appearance (1 March)
Fourth Defendant : Mr M H Zilko SC
Fifth Defendant : Mr P Mendelow
Sixth Defendant : Mr C P Stevenson (14 February); Mr S F Popperwell (1 March)
(Page 22)
Solicitors:
Plaintiff : Talbot & Olivier
First Defendant : Downings Legal
Second Defendant : Greenland Brooksby
Third Defendant : Phillips Fox
Fourth Defendant : John Eller
Fifth Defendant : Jackson McDonald
CIV 2414 of 1997
Counsel:
Plaintiff : Mr J G Staude
First Defendant : Mr P B O'Neal (14 February); no appearance (1 March)
Second Defendant : Mr S V Forbes & Mr M L Greenland (14 February); no appearance (1 March)
Third Defendant : Mr C L Hollett (14 February); no appearance (1 March)
Fourth Defendant : Mr M H Zilko SC
Fifth Defendant : Mr C P Stevenson (14 February); Mr S F Popperwell (1 March)
Solicitors:
Plaintiff : Mony de Kerloy
First Defendant : Downings Legal
Second Defendant : Greenland Brooksby
Third Defendant : Phillips Fox
Fourth Defendant : John Eller
Fifth Defendant : Pynt & Partners
(Page 23)
CIV 2415 of 1997
Counsel:
Plaintiff : Mr J G Staude
First Defendant : Mr P B O'Neal (14 February); no appearance (1 March)
Second Defendant : Mr S V Forbes & Mr M L Greenland (14 February); no appearance (1 March)
Third Defendant : Mr C L Hollett (14 February); no appearance (1 March)
Fourth Defendant : Mr M H Zilko SC
Fifth Defendant : Mr C P Stevenson (14 February); Mr S F Popperwell (1 March)
Solicitors:
Plaintiff : Mony de Kerloy
First Defendant : Downings Legal
Second Defendant : Greenland Brooksby
Third Defendant : Phillips Fox
Fourth Defendant : John Eller
Fifth Defendant : Pynt & Partners
CIV 1202 of 1998
Counsel:
Plaintiff : Mr J G Staude
First Defendant : Mr P B O'Neal (14 February); no appearance (1 March)
Second Defendant : Mr S V Forbes & Mr M L Greenland (14 February); no appearance (1 March)
Third Defendant : Mr C L Hollett (14 February); no appearance (1 March)
Fourth Defendant : Mr M H Zilko SC
Fifth Defendant : Mr P Mendelow
Sixth Defendant : Mr C P Stevenson (14 February); Mr S F Popperwell (1 March)
(Page 24)
Solicitors:
Plaintiff : Talbot & Olivier
First Defendant : Downings Legal
Second Defendant : Greenland Brooksby
Third Defendant : Phillips Fox
Fourth Defendant : John Eller
Fifth Defendant : Jackson McDonald
Sixth Defendant : Pynt & Partners
Sixth Defendant : Pynt & Partners
Sixth Defendant : Pynt & Partners
Sixth Defendant : Pynt & Partners
Case(s) referred to in judgment(s):
Altamura v Victorian Railways Commissioners [1974] VR 33
Atkins v Purslowe [1966] WAR 46
Bankamerica Finance Ltd v Nock [1988] AC 1002
Bullock v The London General Omnibus Company [1907] 1 KB 264
Christofidellis v Zdrilic [2000] FCA 679
Den Hoedt v Barwick [2006] WASCA 196
Dobb v Hacket (1993) 10 WAR 532
Duncan & Weller Pty Ltd v Mendelson [1989] VR 386
Fennell v Supervision & Engineering Services Holdings Pty Ltd (1988) 47 SASR 6
Fimiston Mining NL v Western Reefs Ltd (1996) 14 WAR 387
Grbavac v Hart [1997] 1 VR 154
Johnsons Tyne Foundry Pty Ltd v Maffra Corporation (1948) 77 CLR 544
Jones v Bartlett (2000) 205 CLR 166
Kingswood Golf Club Ltd v Smith [2005] VSCA 224
Mayer v Harte [1960] 1 WLR 770
NMFM Property Pty Ltd v Citibank Ltd (No 11) (2001) 109 FCR 77
Norwest Refrigeration Services Pty Ltd v Bain Dawes (WA) Pty Ltd (1984) 157 CLR 149
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529
Sanko Steamship Company Ltd v Sumitomo Australia Ltd, unreported; Fed C of A (Sheppard J); 7 February 1996
(Page 25)
1 TEMPLEMAN J: The plaintiffs in these actions all claim to have been injured on 31 December 1996, when a balcony on which they were standing, collapsed suddenly and without warning.
2 With two exceptions, the plaintiffs sued:
(1) the occupier of the strata-titled premises of which the balcony formed part (the first defendant);
(2) the owner of the premises (the second defendant);
(3) the strata company (the third defendant);
(4) the City of Fremantle, being the local authority in whose area the premises were situated (the fourth defendant);
(5) the architects who had designed the balcony (the fifth defendants); and
(6) the engineering company which had been involved in certain aspects of the structural design of the balcony (the sixth defendant).
3 The two exceptions were the plaintiffs Marc Drexel in action number 2414 of 1997, who did not sue the fifth defendants and Dean David Holm Graham in action number 2398 of 1997, who sued neither the fifth nor the sixth defendants.
4 The plaintiffs commenced their actions only against the first four defendants. The third defendant then joined the fifth defendant as a third party, following which, the fifth defendant joined the sixth defendant as a fourth party.
5 The plaintiffs (other than Marc Drexel and Dean Graham) joined the fifth defendant and (other than Dean Graham), the sixth defendant. (The sixth defendant in all actions other than Marc Drexel's action became the fifth defendant in that action.)
6 There were numerous inter-defendant contribution claims, to which it is not necessary to refer further, at this stage.
7 The actions went to trial on the issue of liability, on the basis that action 2375 of 1997 would be the lead action. However, ten of the plaintiffs were represented by counsel at the trial. The remaining seven plaintiffs were not represented at trial, but agreed to be bound by the outcome.
(Page 26)
8 At trial, the plaintiffs succeeded against the fourth defendant; and (excluding Marc Drexel and Dean Graham) against the fifth defendants. The plaintiffs' actions against the other defendants were dismissed.
9 It is now necessary to make final orders and to deal with the costs of the actions and inter-defendant proceedings thus far. The parties have all made detailed submissions in relation to costs. It has emerged that the principal issues are:
(1) whether there should be Sanderson or Bullock orders;
(2) whether orders should be made which reflect the rejection of various Calderbank offers;
(3) whether there should be special costs orders;
(4) how the contribution claims between the fourth and fifth defendants should be resolved.
Should there be Sanderson or Bullock orders?
10 Counsel for those plaintiffs who were represented at trial, submitted that this case "cries out for a Sanderson order": that is, an order that the fourth and fifth defendants pay the costs of the successful defendants directly.
11 Counsel relies on the general discretion in relation to costs which is given to the Court by O 66 r 1 of the Rules of the Supreme Court 1971 (WA). Although the rule provides that "the Court will generally order that the successful party to any action or matter recover his costs", it provides also that the general discretion is not to be limited by that consideration.
12 However, in exercising the discretion, it is appropriate to have regard to the principles which have emerged over the years in relation to applications of this kind. The ultimate objective is to make orders for costs which are as fair as possible to all parties.
13 In Bullock v The London General Omnibus Company [1907] 1 KB 264, the Court of Appeal refused to interfere with the exercise of the discretion by the trial Judge, who had ordered the unsuccessful defendant to pay not only the plaintiff's costs, but also, the costs she had to pay to the successful defendants.
(Page 27)
14 Collins MR said at 269:
"The common sense underlying this order is clear, because the learned judge when he made it had before him evidence that, owing to the attitude taken up by the General Omnibus Company, it was reasonable for the plaintiff to join the other defendants." (my emphasis)
15 In other words, it was the conduct of the unsuccessful defendant which made it reasonable for the plaintiff to join the successful defendant.
16 That principle was adopted by Gibbs CJ and Brennan J in Gould v Vaggelas (1985) 157 CLR 215. Gibbs CJ said (at 230):
"In my respectful opinion the true position was clearly stated by Blackburn C.J. in Steppke v. National Capital Development Commission (1978) 39 LGRA 94 at p. 100; 21 ACTR 23 at pp. 30-31, when he said that 'there is a condition for the making of a Bullock order, in addition to the question whether the suing of the successful defendant was reasonable, namely that the conduct of the unsuccessful defendant has been such as to make it fair to impose some liability on it for the costs of the successful defendant'… " (my emphasis)
17 The judgment of Brennan J (at 260) is to the same effect.
18 Wilson J, with whom Murphy J agreed, held (at 247) that a Bullock order may be made "where the costs in question have been reasonably and properly incurred by the plaintiff as between him and the unsuccessful defendant". This approach appears to be somewhat different from that taken by Gibbs CJ and Brennan J because it makes no reference to the attitude or conduct of the unsuccessful defendant. However, it is significant, I think, that Wilson J cited as authority for the proposition he had stated, the decisions in Bullock (supra), Johnsons Tyne Foundry Pty Ltd v Maffra Corporation (1948) 77 CLR 544 at 572; and Altamura v Victorian Railways Commissioners [1974] VR 33. In each of those cases, the question was whether the conduct of the unsuccessful defendant had made it reasonable for the plaintiff to join the successful defendant.
19 The authorities were reviewed by Steytler J in Fimiston Mining NL v Western Reefs Ltd (1996) 14 WAR 387. His Honour noted that in Fennell v Supervision & Engineering Services Holdings Pty Ltd (1988) 47 SASR 6, the members of the Full Court of South Australia had differed
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- in their views as to whether any clear principle could be extracted from Gould v Vaggelas (supra).
20 As I understand the judgment of Steytler J, his Honour adopted the approach taken by von Doussa J at 19, when he said:
"… the principle to be discerned from Gould v Vaggelas is that a Bullock order may be made where the costs in question have been reasonably and properly incurred by the plaintiff as between him and the unsuccessful defendant; as between them those costs will be so incurred where the conduct of the unsuccessful defendant in relation to the plaintiff's claim shows that the joinder of the successful defendant was reasonable and proper to ensure recovery." (my emphasis)
21 I respectfully adopt that approach, which, I think, follows from the authorities on which reliance was placed by the four members of the High Court who considered this issue in Gould v Vaggelas (supra).
22 It is still necessary, of course, to consider what kind of conduct on the part of the unsuccessful defendant will make it reasonable for him to be held liable for the costs of the successful defendant. Examples of such conduct include the failure of a defendant to accept responsibility for the plaintiff's loss, or attempting to blame others when the plaintiff cannot tell in advance which defendant will be held liable.
23 However, it is not appropriate to attempt a rigid classification of conduct which will always justify the making of a Bullock or Sanderson order: nor of conduct which will not lead to that result. Such an exercise would tend to place a fetter on the Court's general discretion.
24 The question is, simply, whether any conduct on the part of the unsuccessful defendant makes it appropriate for him to pay the costs of the successful defendant. As Gibbs CJ said in Gould v Vaggelas (supra) at 229:
"… if nothing that the unsuccessful defendant has said or done has led the plaintiff to sue the other defendant, who ultimately was held not to be liable, it is difficult to see any reason why the unsuccessful defendant should be required to pay for the plaintiff's error or overcaution."
25 There is another consideration. There is authority for the proposition that a Bullock or Sanderson order will not be appropriate where
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- independent causes of action are alleged against the defendants. An example is provided by Norwest Refrigeration Services Pty Ltd v Bain Dawes (WA) Pty Ltd (1984) 157 CLR 149 where one defendant was sued in negligence, and another in contract, on an insurance policy. However, causes of action may be regarded as independent where separate actions have been instituted against the defendants, even though (for example) each action is based on alleged negligence: see Atkins v Purslowe [1966] WAR 46 at 47.
26 In the present case, by writ issued on 22 December 1997, the plaintiff in the lead action claimed initially against the first to the fourth defendants. The claim against the first three defendants was based on an alleged failure to inspect, repair and maintain the balcony. The claim against the fourth defendant arose from an alleged breach of its obligation to inspect the premises in the course of dealing with the strata titles application. In each claim it was alleged that the relevant defendant owed a duty of care to the plaintiff, and that there had been a breach of duty. However, the nature of the duties said to have been owed by the first three defendants and by the fourth defendant were quite different. Although each defendant denied liability, the fourth defendant did not attempt to blame the first three defendants: nor could it reasonably have attempted to do so.
27 The fifth defendants were brought into the action on 2 September 1998, when they were joined as a third party by the third defendant. On 23 December 1998, the third party joined the sixth defendant as a fourth party. However, it was not until 3 August 1999, that the plaintiff obtained an order joining the third and fourth parties as the fifth and sixth defendants respectively.
28 The plaintiffs' claims against the fifth and sixth defendants, although based on negligence, were quite separate and distinct from their claims against the first three defendants: and separate and distinct again from their claims against the fourth defendant.
29 Further, it cannot be said that the conduct of either the fourth or fifth defendants caused the plaintiff to sue the first to the third defendants or to persist in the claims against them following joinder of the fifth and sixth defendants.
30 I therefore see no basis for making Sanderson or Bullock orders as between the plaintiffs and the fourth and fifth defendants in relation to the costs of the first, second and third defendants.
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31 Different considerations apply as between the plaintiffs and the fifth defendants, in relation to the sixth defendant's costs.
32 In my view, as a result of the conduct of the fifth defendant in seeking to blame the sixth defendant for the defective design of the balcony, it was reasonable for the plaintiffs to sue the sixth defendant directly. Although it might be argued that the fifth defendants would have been liable in any event if the design they produced was defective, I think it would have been imprudent for the plaintiffs not to have joined the sixth defendant, when they could not know the precise relationship between the fifth and sixth defendants.
33 In these circumstances, I consider that it would be appropriate for the fifth defendants to bear the plaintiffs' costs of their unsuccessful claim against the sixth defendant.
34 The sixth defendant submits that it might be prejudiced in recovering its costs if a Sanderson order was made. That is because the fifth defendants are likely to be held liable for the payment of substantial damages to the plaintiffs, as well as costs, and because they are only partially insured.
35 In Mayer v Harte [1960] 1 WLR 770, the plaintiff sued three defendants but was successful against only the third defendant, who was bankrupt. The trial Judge made a Bullock order, when a Sanderson order would have protected the successful defendants from the effect of the third defendant's bankruptcy.
36 On appeal, the Court of Appeal, by a majority, refused to interfere with the exercise of the trial Judge's discretion by making a Sanderson order. Sellers LJ said:
"The first and second defendants in this case were sued and successfully resisted the claim. The plaintiff can apparently pay their costs. She seeks to avoid that and asks for an order which probably would mean that the costs would not be paid. Why the successful defendants should be the losers and not the unsuccessful plaintiff I cannot see …"
37 The approach of the Court of Appeal in Mayer v Harte (supra) was approved in Bankamerica Finance Ltd v Nock [1988] AC 1002. Lord Brandon, with whom the other members of the House of Lords agreed, accepted that the decision whether to make a Sanderson or Bullock order, is a matter for the discretion of the trial Judge. It is clear
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- from Lord Brandon's judgment, that in exercising the discretion, it is appropriate to consider the "hardship" likely to be suffered by the parties, depending on which form of order was made.
38 In this context "hardship" does not involve any inquiry as to the respective financial positions of the parties.
39 In the present case, there is no reason to suppose that the plaintiffs, as a group, would be unable to pay the sixth defendant's costs of the proceedings. However, there is a risk that the fifth defendants might not be able to pay those costs.
40 In these circumstances, there would be a greater potential for "hardship" to the sixth defendant if the fifth defendants were ordered to pay their costs directly, than if the plaintiffs were ordered to pay, and to recover those costs from the fifth defendants.
41 I therefore consider it appropriate to make a Bullock order in relation to the costs as between the plaintiffs and the fifth and sixth defendants. That is, an order that the fifth defendants reimburse the plaintiffs for the costs they will be required to pay to the sixth defendant.
The Calderbank offers
42 There are four Calderbank offers to be considered. Before referring to them individually, I set out some general observations on the significance of such offers.
43 A letter written without prejudice except as to costs, and containing an offer to settle proceedings (a Calderbank offer) is admissible for the purpose of exercising the costs discretion. That is so, even where formal offer procedures are available under the relevant rules of court but have not been followed: Dobb v Hacket (1993) 10 WAR 532 at 539 - 540; Den Hoedt v Barwick [2006] WASCA 196 at [112].
44 Where a Calderbank offer is rejected, but proves to have been more favourable to the offeree than the result of the trial, the offeror will usually seek his costs on an indemnity (or solicitor and client) basis from the date on which the offer was made. However, an order in those terms will not necessarily follow. That is because the Court's discretion as to costs cannot be fettered by the fact that a favourable offer has been rejected.
45 Although the circumstances in which the offer was made and rejected will be relevant to the exercise of the costs discretion, the
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- principle that costs follow the event will be applied, unless the plaintiff acted unreasonably in rejecting the offer: NMFM Property Pty Ltd v Citibank Ltd (No 11) (2001) 109 FCR 77 at 98: or perhaps, as Sheppard J put it in Sanko Steamship Company Ltd v Sumitomo Australia Ltd, unreported; Fed C of A (Sheppard J); 7 February 1996, if the plaintiff's conduct was "plainly unreasonable". This unreported decision, which is cited in Dal Pont, "Law of Costs", at [13.46], was cited with apparent approval by Einfeld J in Christofidellis v Zdrilic [2000] FCA 679. His Honour held, at [25], that:
"The effect of this case law is that the respondents are only entitled to an order for costs on an indemnity basis if the applicant's failure to accept one of their [Calderbank] offers was so unreasonable in all of the circumstances of this case that an order for costs on a party and party basis will not do them justice."
47 The situation is different from that which arises where an offer is made under provisions such as O 24A of the Rules of the Supreme Court. Under the rules in force until 1 March 2007, a defendant who made an offer which was not accepted by the plaintiff was presumptively entitled to tax his post-offer costs on a party and party basis if the plaintiff obtained a judgment which was "not more favourable to him than the terms of the offer". Since 1 March 2007, the defendant in those circumstances is presumptively entitled to indemnity costs.
48 Against that background, I turn to consider the various Calderbank offers.
The first defendant's offer to the plaintiffs
49 On 22 September 2006, the first defendant's solicitors wrote to the plaintiffs' solicitors, "without prejudice save as to costs". They noted that the plaintiffs were no longer relying on an allegation against the first defendant that he had been made aware of a defect in the balcony prior to its collapse. In those circumstances, the solicitors said:
"… based upon the evidence and known facts of the case, it is difficult to see any proper basis on which an adverse finding on liability could be made against the first defendant."
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50 The solicitors then set out the following offer:
"1 If the first defendant is released from the proceedings, then it will bear its own costs incurred to date;
2 In respect of any plaintiff that accepts this offer, the first defendant will not seek recovery from such plaintiff in respect of its entitlement under the various costs orders made against the plaintiffs in favour of the first defendant throughout the history of the proceedings.
Acceptance of this offer is conditional upon the following:
1 Any plaintiff, or combination of plaintiffs may accept this offer.
2 The terms of this agreement will be recorded in a deed, which is to be executed by or on behalf of each of the plaintiffs who accepts the offer. The deed shall contain a confidentiality clause.
3 This offer will remain open for acceptance for a period of 21 days from the date of this letter. If the offer is not accepted within that time, then it will lapse.
In considering this offer, you should be aware that the first defendants' costs incurred to date are approximately $280,000.00. We anticipate that going forward from today up to and including the four week trial due to finish on 1 December 2006, that the first defendant is likely to incur approximately a further $200,000.00 in costs."
51 The offer was not accepted.
52 In my view, in considering whether the plaintiffs' rejection of that offer was reasonable, it is important to keep in mind that the offer was made in the context of a trial on liability only.
53 Where issues of liability and quantum are to be tried together, the plaintiff will be able, from his own knowledge, to assess the value of his claim. That exercise might involve the plaintiff in discounting his money claim to reflect any perceived weakness in his case on liability.
54 In the present case, however, the plaintiffs were only able to gauge the strength of the case against the first defendant by reference to his
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- assertion that he had no knowledge of any defect in the balcony, nor of anything which might have put him on notice of any defect. That assertion was made in an affidavit sworn by the first defendant in an application for the summary dismissal of the plaintiff's case. However, that evidence had not been tested by cross-examination: and acceptance of the Calderbank offer would have precluded that course. The offer therefore involved the abandonment of the plaintiffs' claims: not a compromise in the usual sense.
55 Further, the first defendant's offer was based on the assertion that he had incurred costs of $280,000 to date, and was likely to incur costs of a further $200,000.
56 I accept that the first defendant incurred the costs of a summary judgment application and that he had to obtain and consider expert evidence. However, given that the first defendant's case is based on a denial of knowledge, these costs seem to me to be excessive, at least without some explanation or justification.
57 If the first defendant was to obtain an order for indemnity costs, it would still be necessary for his costs to be taxed on a solicitor and client basis. However, in the absence of any breakdown, it would be difficult for the offeree to estimate the likely extent of the taxed costs. Although the plaintiffs would not pay any of those costs if they accepted the offer, they could expect to be held liable if they did not, and were then unsuccessful.
58 In my view, therefore, the principle that an offeree should be left in no reasonable doubt about the value of the offer was not followed in relation to this offer: see Duncan & Weller Pty Ltd v Mendelson [1989] VR 386 at 401; Grbavac v Hart [1997] 1 VR 154 at 155.
59 In all the circumstances, I do not think the plaintiffs' rejection of the first defendant's Calderbank offer was so unreasonable as to displace the usual result of costs following the event.
The third defendant's offer to the plaintiffs
60 On 22 December 2004, the third defendant's solicitors sent a letter containing a Calderbank offer to the solicitors for all the other parties to the litigation.
61 The third defendant's solicitors summarised their client's position: that an inspection of the balcony would not have revealed the presence of
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- any relevant defects and that, on the authority of Jones v Bartlett (2000) 205 CLR 166, it was not reasonable for the third defendant to carry out detailed inspections or investigations to ensure the structural integrity of the balcony, when there were no apparent defects.
62 The third defendant's solicitors went on to assert that their client was not the occupier of the unit and balcony, and that the balcony was not common property.
63 In these circumstances, the solicitors asserted that the plaintiffs would not succeed against the third defendant on the basis of a breach of a duty of care, or under the Occupiers Liability Act 1985 (WA), or the Strata Titles Act 1985 (WA).
64 The Calderbank offer was in the following terms:
"Subject to the agreement of all parties to this action, we are instructed to make the following offer to resolve this claim:
1 The plaintiff's action against the third defendant be dismissed.
2 The contribution proceedings against the third defendant be dismissed.
3 The contribution proceedings issued by the third defendant be dismissed.
4 Each party agrees to bear their own costs.
This offer will remain open for acceptance until 28 February 2005. If this offer is not accepted in writing by that date, then it will automatically lapse without further notice. Should your client subsequently decide to discontinue their action against our client after that date, then our client will seek to recover their costs of defending this action.
This offer constitutes a Calderbank offer. We reserve the right to produce a copy of this letter to the court in support of any application for costs, other than party and party costs."
65 The offer was not accepted by any plaintiff.
66 In my view, as between the plaintiffs and the third defendant, the situation is similar to that existing as between the plaintiffs and the first
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- defendant. That is, the offer required the plaintiffs to abandon their claim against the third defendant in reliance on its assertion that it had no relevant knowledge.
67 The fact that the offer was conditional on acceptance by all parties adds a complication. It has the result, I think, that because no party accepted the offer, an order for indemnity costs could not be made against any party without considering not only the reasonableness of that party's position as against the third defendant, but also, as against each of the other parties.
68 In the absence of any submissions directed to this issue, that is not an exercise I am prepared to undertake.
69 In all the circumstances, therefore, I am not persuaded that it would be appropriate to depart from the usual result, that costs should follow the respective events.
The third defendant's offer to the other defendants
70 On 28 August 2006, the third defendant's solicitors wrote to the solicitors for each of the defendants and made the following Calderbank offer:
"The third defendant offers to pay the sum of $1,000,000 to the defendants in the above listed actions conditional upon the following:
1 Any defendant or any combination of defendants may accept this offer with the third defendant's total liability inclusive of legal costs and disbursements limited to $1,000,000.
2 Upon acceptance of this offer, any defendant accepting this offer will assume conduct of the third defendant's defence in this action including any contribution proceedings.
3 Any defendant accepting this offer and its insurer shall agree to indemnify the third defendant and its insurer against any liability that may arise as a result of a judgment or settlement of the above listed actions inclusive of legal costs and disbursements.
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- 4 The third defendant will make available to any defendant accepting this offer its complete file with the exception of any documents containing legal advice provided to the defendant or to its insurers and will use its best endeavours to ensure that its witnesses will cooperate with such defendant or defendants in the conduct of the above actions.
5 The terms of this agreement will be recorded in a deed which is to be executed by or on behalf of each defendant accepting this offer and by the insurer of those defendants. The deed shall contain a confidentiality clause.
6 This offer will remain open for acceptance for a period of 21 days from the date of this letter. If the offer is not accepted within that time, then it will lapse without further notice to the defendants."
71 The offer was not accepted by any of the defendants. On that basis, the third defendant seeks orders that the fourth and fifth defendants pay the third defendant's costs of their respective contribution claims on a party and party basis down to 28 August 2006, and thereafter, on an indemnity basis.
72 In the course of his submissions, counsel for the third defendant relied only on the fact that the Calderbank offer had not been accepted, as the basis for costs orders in these terms.
73 However, for reasons set out above, before making the orders sought, I would need to be persuaded that the fourth and fifth defendants acted unreasonably in declining to accept the offer. In my view, it is impossible to make that judgment on the materials before me: I do not know what the implications were (if any) of accepting the conditions stipulated by the third defendant.
74 I therefore consider that costs should follow the event in relation to the contribution proceedings between the third, fourth and fifth defendants.
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The sixth defendant's offer to the other defendants
75 On 14 September 2006, the sixth defendant's solicitors wrote to the solicitors for each of the defendants and made a Calderbank offer in a form similar to that made on 14 August on behalf of the third defendant.
76 The offer was in the following terms:
"The sixth defendant offers to pay the sum of $800,000 to the defendants in the above listed actions (and third party in the Marc Drexel action) conditional upon the following:
1. Any insured defendant or any combination of insured defendants and Ash Investments ('Acceptors') may accept this offer with the sixth defendant's total liability inclusive of legal costs and disbursements limited to $800,000;
2. Upon acceptance of this offer, the Acceptors will assume conduct of the sixth defendant's defence, (including the defence of any contribution, third and fourth party proceedings) and the prosecution of any contribution or third party claims made by the sixth defendant. The sixth defendant is not a party to the Graham action; this offer requires Acceptors to indemnify the sixth defendant against any claim that may be made by Graham or another party seeking contribution for their liability to Graham;
3. The Acceptors (and an Acceptors insurers) shall agree to indemnify the sixth defendant and its insurer against any liability that may arise as a result of a judgment or settlement of the above listed actions inclusive of legal costs and disbursements;
4. The sixth defendant will make available to the Acceptors its complete file with the exception of any documents containing legal advice provided to the sixth defendant or to its insurers and will use its best endeavours to ensure that its witnesses co-operate in the conduct of the actions.
5. The terms of this agreement will be recorded in a deed which is to be executed by or on behalf of the Acceptors and their insurer(s) (we note Ash Investments says it is
- not insured for the claim. If Ash Investments and an insured defendant accept this offer, this condition does not require an insurer of Ash Investments to be a party to the compromise deed). The deed shall contain a confidentiality clause.
- 6. This offer will remain open for acceptance for a period of 21 days from the date of this letter. If the offer is not accepted within that time, then it will lapse."
77 The offer was not accepted by any of the defendants.
78 The sixth defendant seeks orders that the fourth and fifth defendants pay the sixth defendant's costs of their respective contribution claims on a party and party basis down to 14 September 2006, and thereafter, on an indemnity basis.
79 Again, the orders are sought simply on the basis that the Calderbank offer was not accepted: but again, I am unable to judge whether the fourth and fifth defendants acted unreasonably. I emphasise that the question cannot be answered by reference only to the amount offered.
80 Not being persuaded that the fourth and fifth defendants did act unreasonably, I conclude that costs should follow the event in the contribution proceedings between the fourth, fifth and sixth defendants.
Should there be special costs orders?
81 Order 66 r 12 of the Rules of the Supreme Court permits the Court to make special orders for costs "by reason of the unusual complexity or importance of the case or for any other good or sufficient reason". In those circumstances, costs may be taxed (for example) without regard to the limits imposed by the relevant scales.
82 In my view, the present case was not unusually complex or important: that is, in comparison with other litigation conducted in the Supreme Court.
83 I therefore see no reason to make special costs orders on that basis. However, the case was such as to justify the involvement of Queen's Counsel. The third defendant was represented by Queen's Counsel and should therefore have the appropriate certificate.
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84 In actions involving multiple parties who have a common interest, it is usual to award a single set of costs in favour or against those parties, as may be appropriate.
85 In the present case, as a result of a case management order made by consent on 17 September 2004, action 2375 of 1997 became the lead action. Before that date, the actions were separate, although they were not all run independently: various small groups of plaintiffs combined for the purpose of instructing solicitors.
86 In these circumstances, it is possible that costs may have been incurred by some plaintiffs individually which it would be proper to permit them to recover against the fourth and fifth defendants.
87 Similarly, the successful defendants may have incurred costs above the scale by reason of their having to defend up to 17 actions, at least down to 17 September 2004. I consider that the mediation falls within this category, for both the plaintiffs and the defendants. That is because the quantum of each individual claim will no doubt be different.
88 I therefore consider it appropriate to order that the fourth and fifth defendants are to be jointly and severally liable to pay the plaintiffs' costs, to be taxed as one set of costs, but to remove the scale limits in relation to the costs of the mediation and any other item which, in the opinion of the Taxing Officer, it was reasonable for a plaintiff to incur individually.
89 As between the plaintiffs, it will be necessary to apportion the costs other than those awarded individually. In my view, subject to any agreement between the parties, the fairest basis for apportionment is the proportion the claim advanced by each plaintiff in their respective schedules of damage bears to the total of the amounts claimed.
90 Order 66 r 2(f) provides that a plaintiff suing in a representative capacity shall be liable personally to pay the costs of a successful defendant.
91 Although the plaintiff in the lead action was suing in a quasi-representative capacity, it would be unfair to require her to bear the costs of the successful defendants.
92 In my view, liability for the costs of each successful defendant should be apportioned between the plaintiffs in accordance with the formula set out above. (The plaintiffs will be jointly and severally liable as between themselves and each successful defendant.)
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93 Each successful defendant should have one set of costs as against the plaintiffs. However, again, I consider it appropriate to remove the scale limits in relation to the mediation and any other item which, in the opinion of the Taxing Officer, it was reasonable for the defendant to duplicate by reason of the number of plaintiffs.
The contribution claim between the fourth and fifth defendants
94 In Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529 at 532 - 533, the High Court were unanimous in holding that:
"The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man … and of the relative importance of the acts of the parties in causing the damage …
It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination."
95 Although that principle was stated in relation to the apportionment as between a plaintiff and a defendant, it applies equally to apportionment between defendants: see Kingswood Golf Club Ltd v Smith [2005] VSCA 224 at [25].
96 In the present case, the fourth defendant contends that it should have a complete indemnity from the fifth defendants in respect of the plaintiffs' claims. This is on the basis that, whereas the fourth defendant's involvement was confined to a single inspection for the purpose of the strata-titling of the premises incorporating the balcony, the fifth defendants were involved over an extensive period, from the preparation of the plans through to the completion of the works. The fourth defendant contends that the fifth defendants' failure to design the balcony in an adequate way and to supervise the works, suggests a greater degree of culpability on their part.
97 Against that, the fifth defendants contend that they did not depart to any great degree from the standard of care of the reasonable architect. That is because they incorporated structural advice from an engineer (albeit not the sixth defendant) into their design. Further, the fifth defendants properly specified that jarrah should be used in the construction of the balcony: and they were not responsible for the
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- substitution of oregon. The fifth defendants were under no contractual obligation to supervise the construction of the works.
98 On the view I have taken of the nature of the fourth defendant's obligation to inspect the building for consistency with the building plans and specifications, I consider that it is far more culpable than the fifth defendants.
99 The fifth defendants acted reasonably in obtaining structural advice from an engineer. They are liable for the deficiencies in the design of the balcony because they put it forward as their own. However, they did recommend on three occasions that the sixth defendant be instructed to carry out a structural inspection of the completed building.
100 In summary, therefore, the fifth defendants did take steps to discharge their professional obligations. I have held them to be liable because, in my opinion, they did not go far enough.
101 By contrast, the fourth defendant was negligent because it did not take any steps to comply with what I have held to be its statutory obligation to inspect the building for consistency with the plans and specifications: nor did it follow what I accepted as the proper practice in relation to applications for strata titling.
102 I accept that such an inspection would not have revealed the shortcomings in the design. However, it would have revealed that the balcony had been constructed of oregon which, as any properly qualified inspector would have known, should not have been used in that service.
103 Such a discovery would have led to the refusal of the relevant certificate and the replacement of oregon by the jarrah, as specified.
104 In my view, given that the inspection by the fourth defendant should have been carried out following the completion of the building, the failure to inspect was a relatively more important omission in causing the damage.
105 I do not accept the submission made on behalf of the fourth defendant that there was no evidence that if jarrah had been used instead of oregon, the balcony would not have collapsed.
106 Counsel for the fourth defendant (who was not counsel at trial) noted that no witness was asked whether the collapse would have occurred when it did if jarrah had been used in its construction, rather than oregon.
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107 However, as I noted in my reasons (at [57]), the evidence of Dr Davison was that jarrah would have decayed much more slowly than oregon because it is a more durable timber. That, no doubt, is why jarrah is recommended for exterior use whereas oregon is not.
108 It was my acceptance of Dr Davison's evidence on this point that led to the conclusion that the balcony would not have collapsed when or as it did, had it been constructed of jarrah.
109 In these circumstances, I accept the submission made on behalf of the fifth defendants that the fourth defendant should contribute 70 per cent of the damages awarded to the plaintiffs and the fifth defendants should contribute 30 per cent. Their respective liabilities for costs should be apportioned in the same way.
The other inter-defendant proceedings
110 As I have mentioned above, there were numerous other inter-defendant contribution notices. It is appropriate that they should be dismissed with costs. However, it may be that the costs have been subsumed in the costs of the trial. I therefore propose to order that any costs which may have exceeded the trial costs will be recoverable.
111 The fifth defendants' fourth party proceeding against the sixth defendant should also be dismissed.
112 I do not accept the submission made on behalf of the fifth defendants that they and the plaintiffs should be held liable to contribute equally to the sixth defendant's costs of those proceedings.
113 The submission is made on the basis that the plaintiffs took independent action against the sixth defendant when they could have abided the outcome of the fourth party proceedings.
114 That is so: but, as I have noted above in relation to the plaintiffs' joinder of the fifth defendants, it would have been imprudent for them not to have joined the sixth defendant also.
115 I therefore consider that in the fourth party proceedings, the costs should follow the event.
The order
116 I have prepared a draft order which forms an appendix to these reasons. Because of the complexity of the costs issues, I propose to give
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- the parties an opportunity to comment on the draft. This is not to be taken as an opportunity to re-argue issues about which I have reached the conclusions set out above. It will, however, enable me to correct any errors or omissions before the order is extracted.
117 In order to save the costs of appearances, these reasons will be published electronically. I will allow any party who wishes to comment on the draft order four weeks from the date of publication in which to do so. Any comment should be set out concisely in a letter to my associate which is copied to other parties, who will have two weeks from the date of receipt in which to respond, if so advised.
118 For the avoidance of doubt, I should record that the absence from the draft of any order for the costs of the hearing on 14 February 2007 is intentional. I regard the hearing as an occasion on which all parties, while seeking to advance their own position, were nevertheless attempting to assist me in arriving at a result which is as fair as possible to all concerned.
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APPENDIX
Draft Order
- In this Order, the following terminology is used:
(1) "the Group A Actions" means the actions brought by the plaintiffs and having the numbers listed below:
Sharon Lee Gove 2375 of 1997
Barnaby Pierre Colin Wood 2370 of 1997
Paul Charles Blackman 2371 of 1997
Mia Lee Farinosi (Martin) 2378 of 1997
Juliette Chloe Virginie Wood 2382 of 1997
Ian Robert Michel Regnard 2411 of 1997
Nigel Kenneth Giles 2413 of 1997
Robyn Drexel 2415 of 1997
Neil Alexander Grant 1202 of 1998
(2) "the Group B Actions" means the actions brought by the plaintiffs and having the numbers listed below:
Kyle Theodore Peters 2373 of 1997
Michael Antony Kuba 2374 of 1997
Shelley Merrilyn Gollan 2376 of 1997
Maryanne Fiore 2377 of 1997
Tina Elizabeth D'Castro (Ackerman) 2381 of 1997
Dannielle Dorisse Elizabeth Beckwith 2412 of 1997
(3) "the Drexel Action" means action number 2414 of 1997 brought by Marc Drexel;
(4) "the Graham Action" means action number 2398 of 1997 brought by Dean David Holm Graham.
In each of the Group A and Group B Actions:
(1) judgment is to be entered for the plaintiff against the fourth and fifth defendants, for damages to be assessed;
(2) as between the fourth and fifth defendants, the damages are to be paid as to 70 per cent by the fourth defendant and 30 per cent by the fifth defendants;
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- (3) the plaintiff's claims against each of the first, second, third and sixth defendants are dismissed.
In the Drexel Action:
(1) judgment is to be entered for the plaintiff against the fourth defendant, for damages to be assessed;
(2) the plaintiff's claims against each of the first, second, third and fifth defendants are dismissed.
In the Graham Action:
(1) judgment is to be entered for the plaintiff against the fourth defendant, for damages to be assessed;
(2) the plaintiff's claims against each of the first, second and third defendants are dismissed.
The fourth and fifth defendants, jointly and severally, do pay the plaintiffs' costs of the Group A, Group B and Drexel Actions, to be taxed as one set of costs, but the scale limits are not to apply to the costs of the mediation or to any other item(s) which, in the opinion of the Taxing Officer, it was reasonable for a plaintiff to incur individually.
Subject to any agreement between the plaintiffs, the costs, other than those of the mediation and in respect of which individual allowances are made, are to be apportioned between the plaintiffs in the Group A and Group B Actions in the same proportion as their respective claims bears to the total amounts claimed ("the Formula").
Where costs are allowed on an individual basis, those costs shall be paid to the plaintiffs concerned.
The fourth and fifth defendants, jointly and severally, do pay the costs of obtaining a transcript of the trial, such costs to be apportioned between the Group A plaintiffs and Marc Drexel in accordance with the Formula.
As between the fourth and fifth defendants, the costs are to be paid as to 70 per cent by the fourth defendant and 30 per cent by the fifth defendants.
The plaintiffs in the Group A, Group B, Drexel and Graham Actions, jointly and severally, do pay:
(1) the first defendant's costs of the action;
(2) the second defendant's costs of the action; and
(3) the third defendant's costs of the action, with a certificate for Queen's Counsel and junior counsel and including as a
- disbursement, the cost of removal and storage of the collapsed balcony timbers.
- In each case, the costs are to be taxed as one set of costs and are to be apportioned between these plaintiffs in accordance with the Formula.
The plaintiffs in the Group A, Group B and Drexel Actions, jointly and severally, do pay the sixth defendant's costs of the actions (the sixth defendant being the fifth defendants in the Drexel Action) to be taxed as one set of costs.
The fifth defendants are to pay to the plaintiffs the amount of the costs they are ordered to pay to the sixth defendant.
The costs are to be apportioned between these plaintiffs in accordance with the Formula.
The first defendant's contribution notices dated 14 October 2004 to the second, third, fourth, fifth and sixth defendants be dismissed.
The first defendant do pay the costs of each of the second, third, fourth, fifth and sixth defendants of those respective proceedings, insofar as those costs exceed the relevant defendant's costs of the trial, to be taxed.
The third defendant's third party proceedings against the fifth defendants are dismissed.
The third defendant do pay the fifth defendants' costs of the proceedings, insofar as those costs may have increased the fifth defendants' costs of the trial, to be taxed.
The third defendant's contribution notices dated 6 October 2004 against the first, second, fourth and sixth defendants be dismissed.
The third defendant do pay the first, second, fourth and sixth defendants' costs of those proceedings insofar as those costs may have increased any of those defendants' costs of the trial, to be taxed.
The fourth defendant's contribution notice dated 14 October 2004 against the first, second, third and sixth defendants be dismissed.
The fourth defendant do pay the first, second, third and sixth defendants' costs of the proceedings insofar as those costs may have increased any of those defendants' costs of the trial, to be taxed.
The fourth defendant's contribution notice dated 14 October 2004 against the fifth defendants be dismissed.
The fourth defendant do pay the fifth defendants' costs of those proceedings insofar as those costs may have increased the fifth
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- defendants' costs of the trial and do pay the costs of the hearing on 1 March 2007, to be taxed.
The fifth defendants' contribution notices dated 23 December 1998 and 18 January 1999 against the first defendant, and their Third Party proceedings against the sixth defendant be dismissed.
The fifth defendants do pay the first and sixth defendants' costs of those proceedings insofar as those costs may have increased their costs of the action, to be taxed.
The sixth defendant's contribution notices dated 13 October 2004 against the first, second, third, fourth and fifth defendants be dismissed.
The sixth defendant do pay the costs of the first, second, third, fourth and fifth defendants of the proceedings insofar as those costs may have increased any of those defendants' costs of the trial, to be taxed.
References to costs in this order includes reserved costs.
0
15
1