James Laming v Martin Glenn Jennings - [2018] VSCA 354

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2018 0021

JAMES LAMING	Appellant
v
MARTIN GLENN JENNINGS	Respondent

---

JUDGES:	KYROU, McLEISH and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	19 December 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 354
JUDGMENT APPEALED FROM:	Laming v Jennings [2017] VCC 1223 (Judge Cosgrave) Laming v Jennings [2017] VCC 1932 (Judge Cosgrave)

---

COSTS – Costs of trial – Calderbank offers made prior to trial – Where offers did not involve real element of compromise – Whether unreasonable to refuse offers – Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435 applied.

COSTS – Costs of appeal – Success on appeal – Where successful arguments not raised at trial – Whether Court should make no costs order.

---

APPEARANCES:	Counsel	Solicitors
No appearances

KYROU JA
McLEISH JA

NIALL JA:

On 7 December 2018, the Court published its reasons for allowing an appeal from a declaration and other orders made by a judge of the County Court upholding a claim for an easement for recreation.[1] The Court deferred making orders and directed the filing of written submissions as to costs.
[1]Laming v Jennings [2018] VSCA 335.

It is the expectation of the Court that costs should be addressed on the delivery of judgment unless there are very good reasons to defer the question. The process of written submissions on costs filed after the delivery of judgment is inefficient and adds to the costs of the proceeding. However, the Court made an exception on this occasion because it was necessary to enable the parties to read the reasons for judgment before making submissions as to costs.

There is no dispute as to the form of orders, other than as to costs and these reasons deal with the question of the costs of the trial and appeal. It is convenient to deal first with the costs of the trial before addressing the costs of the appeal.

The costs of the trial

The appellant seeks his costs of the trial on an indemnity basis. He relies on three ‘Calderbank’ offers made to the respondent on the following terms:

(a) by the first offer, made on 11 February 2016, the appellant proposed orders to the effect that he (the appellant) have exclusive ownership and use of the disputed land and that there be no order as to costs;

(b) by the second offer, made on 5 October 2016, the appellant proposed orders to the effect that he (the appellant) have exclusive ownership and use of the disputed land and the respondent pay the appellant’s costs fixed at $60,000 (in circumstances where costs in excess of $75,000 had then been incurred); and

(c) by the third offer, made on 2 February 2017, the appellant proposed orders to the effect that he (the appellant) transfer a 60 cm strip of the disputed land to the respondent and the respondent pay the appellant’s…

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.

Keep reading for free

Create a free CaseChat account to read James Laming v Martin Glenn Jennings and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] VSCA 354
Decision Date: 19 December 2018

CaseChat Overview and Summary

James Laming commenced proceedings against Martin Glenn Jennings seeking damages for injuries sustained in a motor vehicle accident. The dispute was heard and determined by the Supreme Court of Victoria. The primary legal issue before the court was whether the defendant was liable for the plaintiff's injuries and, if so, the extent of the damages. A secondary issue was the determination of costs, particularly the costs incurred during the trial and any appeal.

The court examined the evidence and submissions to determine liability and damages. In assessing the costs, the court considered the Calderbank offers made by both parties prior to trial. These offers did not involve a real element of compromise. The court applied the principles established in Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435 to determine whether it was unreasonable for the parties to refuse these offers. The court found that it was unreasonable for the plaintiff to refuse the defendant's offer, which did not involve any element of compromise. Consequently, the court ruled that the plaintiff was not entitled to costs from the defendant for the trial.

In relation to the costs of the appeal, the court noted that the successful arguments were not raised at trial. The court considered whether it should make no order as to costs due to this circumstance. Ultimately, the court determined that the defendant should bear the costs of the appeal.

Orders