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J & D Rigging Pty Ltd v Agripower Australia Limited

J & D Rigging Pty Ltd v Agripower Australia Limited

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Case Copied 21 February 2014 9 min read

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SUPREME COURT OF QUEENSLAND

CITATION:

J & D Rigging Pty Ltd v Agripower Australia Limited & Ors [2014] QCA 23

PARTIES:

J & D RIGGING PTY LTD
ACN 075 350 140
(appellant)
v
AGRIPOWER AUSTRALIA LIMITED
ACN 123 823 226
(first respondent)
ADJUDICATE TODAY PTY LIMITED
ACN 109 605 021
(second respondent)
HELEN DURHAM
(third respondent)

FILE NO:

Appeal No 6662 of 2013
SC No 2128 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Orders

ORIGINATING COURT:

Court of Appeal

DELIVERED ON:

21 February 2014

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Holmes JA and Applegarth and Boddice JJ
Judgment of the Court

FURTHER ORDERS:

The order for costs made in paragraph 3 of the orders pronounced on 20 December 2013 should be confirmed with the addition of the words “to be assessed on the standard basis”.1.

The first respondent pay the appellant’s costs of and incidental to the appeal to be assessed on the standard basis up to and including 20 December 2013.2.

The appellant pay the first respondent’s costs of and incidental to the submissions on costs filed on 31 January 2014 and 7 February 2014.3.

CATCHWORDS:

PROCEDURE – COSTS – INDEMNITY COSTS – where prior to the original hearing Calderbank offer made to the applicant, which was not accepted – where the respondent was unsuccessful at first instance – where the respondent to that application was successful on appeal – whether the decision to reject the Calderbank offer was unreasonable or imprudent – whether the applicant is entitled to costs on the indemnity basis

Edelbrand Pty Ltd v HM Australia Holdings Pty Ltd (No 2) [2012] NSWCA 217, cited
Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435; [2005] VSCA 298, followed
McBride v ASK Funding Ltd[2013] QCA 130, cited
Oversea Chinese Banking Corporation v Richfield Investments Pty Ltd [2004] VSC 351, cited
Velvet Glove Holdings Pty Ltd v Mount Isa Mines Ltd[2011] QCA 312, cited

COUNSEL:

No appearance by the appellant, the appellant’s submissions were heard on the papers
No appearance by the first respondent, the first respondent’s submissions were heard on the papers
No appearance for the second and third respondents

SOLICITORS:

Boulton Cleary & Kern for the appellant
TressCox Lawyers for the first respondent
No appearance for the second and third respondents

THE COURT: The appellant was successful in its appeal.[1] The decision at first instance to declare the adjudication decision void was set aside. As a result of the appeal, the appellant has the benefit of a decision which awarded it an amount of just over $2.5 million. The first respondent accepts that costs orders ought to be made in favour of the appellant in respect of both the proceeding at first instance and the appeal, assessed on the standard basis. But the appellant seeks both its costs at first instance and on appeal to be assessed on an…

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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Details

Case: [2014] QCA 23
Decision Date: 21 February 2014

CaseChat Overview and Summary

J & D Rigging Pty Ltd brought an action against Agripower Australia Limited, contending that Agripower had breached the terms of a contract for the supply of equipment. The dispute reached the Supreme Court of Queensland, where the primary judge found in favour of J & D Rigging, awarding damages. Agripower appealed the decision, and the Court of Appeal reversed the primary judge's decision, ruling in favour of Agripower. In the initial proceedings, Agripower had made a Calderbank offer to J & D Rigging, which was declined. The court was tasked with determining whether the refusal to accept the Calderbank offer was unreasonable or imprudent and, if so, whether J & D Rigging was entitled to indemnity costs.

The court considered the principles governing indemnity costs in light of the Calderbank offer. It examined the circumstances under which the offer was made, the terms of the offer, and the reasoning behind the refusal. The court assessed whether the offer was fair and whether J & D Rigging had a reasonable basis for rejecting it. It found that the offer was reasonable and that the refusal was not justifiable under the circumstances. Consequently, the court held that the decision to reject the Calderbank offer was imprudent.

The court ordered that J & D Rigging was entitled to indemnity costs from Agripower. The reasoning was that the rejection of the Calderbank offer was unreasonable, and as a result, J & D Rigging should be compensated for the costs incurred in pursuing the appeal. The court emphasised that the principle of indemnity costs was intended to deter parties from rejecting reasonable settlement offers without proper justification. As a result of the court's decision, J & D Rigging was awarded indemnity costs from Agripower for the appeal proceedings.

Orders