Hendriks v McGeoch (No 2) - [2008] NSWCA 103

New South Wales

Court of Appeal

CITATION: Hendriks v McGeoch (No 2) [2008] NSWCA 103

HEARING DATE(S): (On written submissions)

JUDGMENT DATE:
23 May 2008

JUDGMENT OF: Spigelman CJ at 1; Giles JA at 2; Basten JA at 18

DECISION: Costs order made on 2 April 2008 not varied. Respondent pay appellants' costs of the application to vary it.

CATCHWORDS: Costs - pre-trial offers of settlement - plaintiff achieves greater success at trial than offers - defendant appeals - defendant obtains reduction of damages on appeal - but plaintiff's success still greater than offers - offers a discretionary factor as to appellate costs - appeal a new stage in litigation - plaintiff did not make fresh offer - prior offers counted for little - no variation to costs order otherwise appropriate by reason of offers.

CATEGORY: Consequential orders

PARTIES: Henri Hendriks - First Appellant
Robert George Stone - Second Appellant
Ian Erratt - Third Appellant
Frederick John Commins - Fourth Appellant
Glen Francis Lolback - Fifth Appellant
Geoffrey John Potter - Sixth Appellant
William James Thompson - Seventh Appellant
Peter James Webb - Eight Appellant
Jon McLaurin McGeoch - Respondent

FILE NUMBER(S): CA 40229/07

COUNSEL: P W Arblaster - Appellants
A M Colefax SC - Respondent

SOLICITORS: Colin Biggers & Paisley - Appellants
Walsh & Blair, Wagga Wagga - Respondent

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): SC 4154/03

LOWER COURT JUDICIAL OFFICER: Gzell J

LOWER COURT DATE OF DECISION: 11 April 2007, 13 April 2007

LOWER COURT MEDIUM NEUTRAL CITATION: McGeoch v Hendriks & Ors [2007] NSWSC 311; Jon McLaurin McGeoch v Henri Hendriks & Ors (No 2) [2007] NSWSC 364.

CA 40229/07
SC 4154/03

SPIGELMAN CJ
GILES JA
BASTEN JA
Friday 23 May 2008

HENDRIKS v McGEOCH (No 2)

Judgment

1 SPIGELMAN CJ: I agree with Giles JA.

2 GILES JA: The appellants were held liable to the respondent in negligence. The respondent obtained judgment for $422,834.90. The appellants appealed on liability and quantum. The respondent applied for leave to appeal as to costs.

3 On 2 April 2008 the application for leave to appeal was dismissed, and the appeal was upheld to the extent that, as calculated by the parties in accordance with the Court’s reasons, the judgment was reduced to $338,267.92. It was ordered that the appellants pay 50 per cent of the respondent’s costs of the appeal.

4 The respondent applied for variation of the costs order to either -

(a) an order that the appellants pay the respondent’s costs of the appeal on an indemnity basis or alternatively on a party and party basis; or

5 The appellants opposed the application. Written submissions were directed. The parties agreed to the application being decided on the written submissions.

6 The respondent relied in the application upon settlement offers made prior to the trial. A number…

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 Hendriks v McGeoch (No 2)

Details

AGLC: Hendriks v McGeoch (No 2) [2008] NSWCA 103
Case: [2008] NSWCA 103
Decision Date: 23 May 2008

CaseChat Overview and Summary

The parties to this matter were the plaintiff, McGeoch, and the defendants, Hendriks. The dispute concerned the award of costs following an appeal. The Court of Appeal of New South Wales was required to consider whether to vary an earlier costs order in light of pre-trial settlement offers made by the plaintiff, despite the defendants having achieved a reduction in damages on appeal.

The central legal issue before the Court of Appeal was whether the plaintiff's success at trial, which exceeded the settlement offers made by the plaintiff, should be a decisive factor in determining the costs of the appeal, particularly given that the defendants had succeeded in reducing the quantum of damages awarded at first instance. The court also had to consider the weight to be given to the plaintiff's earlier settlement offers in the context of the appeal as a distinct stage of the litigation.

The Court of Appeal reasoned that while the plaintiff's success at trial had exceeded their pre-trial settlement offers, this fact was a discretionary consideration for the court when awarding costs. The appeal represented a new stage in the litigation, and the plaintiff had not made any fresh settlement offers in response to the appeal. Consequently, the court found that the prior offers counted for little in the context of the appellate costs. The court concluded that there was no reason to vary the costs order that had been made on 2 April 2008.

Accordingly, the Court of Appeal ordered that the costs order made on 2 April 2008 would not be varied. The respondent (the plaintiff) was ordered to pay the appellants' (the defendants') costs of the application to vary that costs order.

Orders

Orders of the court

Costs order made on 2 April 2008 not varied. Respondent pay appellants' costs of the application to vary it.

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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CITATION:	Hendriks v McGeoch (No 2) [2008] NSWCA 103
HEARING DATE(S):	(On written submissions)
JUDGMENT DATE:	23 May 2008
JUDGMENT OF:	Spigelman CJ at 1; Giles JA at 2; Basten JA at 18
DECISION:	Costs order made on 2 April 2008 not varied. Respondent pay appellants' costs of the application to vary it.
CATCHWORDS:	Costs - pre-trial offers of settlement - plaintiff achieves greater success at trial than offers - defendant appeals - defendant obtains reduction of damages on appeal - but plaintiff's success still greater than offers - offers a discretionary factor as to appellate costs - appeal a new stage in litigation - plaintiff did not make fresh offer - prior offers counted for little - no variation to costs order otherwise appropriate by reason of offers.
CATEGORY:	Consequential orders
PARTIES:	Henri Hendriks - First Appellant Robert George Stone - Second Appellant Ian Erratt - Third Appellant Frederick John Commins - Fourth Appellant Glen Francis Lolback - Fifth Appellant Geoffrey John Potter - Sixth Appellant William James Thompson - Seventh Appellant Peter James Webb - Eight Appellant Jon McLaurin McGeoch - Respondent
FILE NUMBER(S):	CA 40229/07
COUNSEL:	P W Arblaster - Appellants A M Colefax SC - Respondent
SOLICITORS:	Colin Biggers & Paisley - Appellants Walsh & Blair, Wagga Wagga - Respondent
LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	SC 4154/03
LOWER COURT JUDICIAL OFFICER:	Gzell J
LOWER COURT DATE OF DECISION:	11 April 2007, 13 April 2007
LOWER COURT MEDIUM NEUTRAL CITATION:	McGeoch v Hendriks & Ors [2007] NSWSC 311; Jon McLaurin McGeoch v Henri Hendriks & Ors (No 2) [2007] NSWSC 364.