Heywood v Miller

[2005] ACTSC 12

ELIZABETH HEYWOOD v WAYNE MILLER
[2005] ACTSC 12 (18 February 2005)

COSTS – Calderbank offer by defendant – plaintiff recovering less than amount offered – relevant considerations

Supreme Court Rules, O 26, rr 1, 11
Evidence Act 1995, s144

Calderbank v Calderbank [1975] 3 WLR 586
Mazloum v Rich, Supreme Court of the ACT (Master Connolly, 11 July 1997, unreported)
Hart v McGlynn, Supreme Court of the ACT (Gallop ACJ, Higgins and Crispin JJ, 13 July 1998, unreported)
Kosev v GIO General Limited, Supreme Court of the ACT (Cooper J, 18 November 1997, unreported)

No. SC 835 of 2001

Judge: Master Harper
Supreme Court of the ACT

Date: 18 February 2005

IN THE SUPREME COURT OF THE     )
  )          No. SC 835 of 2001
AUSTRALIAN CAPITAL TERRITORY           )

BETWEEN:ELIZABETH HEYWOOD

Plaintiff

AND:WAYNE MILLER

Defendant

ORDER

Judge:  Master Harper
Date:  18 February 2005
Place:  Canberra

THE COURT ORDERS THAT:

The defendant pay the plaintiff’s costs up to and including 27 November 2003.

1. I delivered judgment in this action on 28 January 2005, assessing the plaintiff’s damages at $202,869.35, and reducing that figure by 30% to take account of her contributory negligence.  Judgment was entered in her favour in the sum of $142,008.55.

1. The solicitors for the defendant seek orders for costs reflecting the fact that the plaintiff twice rejected offers conveyed by Calderbank letter.  The first letter was dated 6 November 2003 and expressed to be without prejudice except as to costs.  The solicitors for the defendant offered $145,000.00 plus costs, and made reference to the decision in Calderbank v Calderbank [1975] 3 WLR 586.

1. The offer was expressed to be on the basis that its acceptance was acknowledged to be a settlement under s 22(1)(a) of the Health and Other Services Act (Compensation) Act 1995 of the Commonwealth, and that the defendant’s insurer had informed the plaintiff that it might be liable to pay amounts under the Act or under the Health and Other Services (Compensation) Care Charges Act 1995.  It has not been submitted that this wording converted the offer into a conditional one, so that its acceptance might have placed the plaintiff in a less favourable position than if the Court had awarded her $145,000.00 following a hearing.

1. The offer was expressed to be subject to the condition that no interest would be payable on the settlement amount provided that it was paid within twenty-eight days.  It does not seem to me that the imposition of this condition should deprive the defendant of any benefit from the offer.

1. The offer was expressed to be open until 4.00 pm on 27 November 2003, a period of twenty-one days.  The letter concluded that if the offer was not accepted, the defendant would rely upon the letter in any argument relating to costs or interest.  It has not been submitted that the period of twenty-one days was inadequate for the plaintiff to consider and give instructions in relation to the offer.

1. The solicitors…