Koh v Tay
[1999] WASC 228
•17 NOVEMBER 1999
KOH -v- TAY [1999] WASC 228
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASC 228 | |
| 17/11/1999 | |||
| Case No: | CIV:1332/1994 | 22 OCTOBER 1999 | |
| Coram: | SCOTT J | 22/10/99 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application for indemnity costs order refused | ||
| PDF Version |
| Parties: | ANDREW KEE SUAN KOH AH BOEY TAY |
Catchwords: | Civil matter Costs Order of costs subsequent to delivery of judgment Application for indemnity costs order "Calderbank" letter Rules of the Supreme Court, O 24A r 10(4) Plaintiff entitled to costs on indemnity basis provided the Rules of the Supreme Court are complied with |
Legislation: | Rules of the Supreme Court, O 24A r 10(4) |
Case References: | Calderbank v Calderbank [1975] 3 All ER 333 Multicon Engineering Pty Ltd v Federal Airports Corporation (1996) 138 ALR 425 Black v Lipovac & Ors (1998) Federal Court (FC) 4 June 1998 Dobb v Hackett (1993) 10 WAR 532 Wallace v Baulkham Hills Smash Repairs Pty Ltd (No 2), unreported; SCt of NSW; 21 August 1995 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : KOH -v- TAY [1999] WASC 228 CORAM : SCOTT J HEARD : 22 OCTOBER 1999 DELIVERED : 22 OCTOBER 1999 PUBLISHED : 17 NOVEMBER 1999 FILE NO/S : CIV 1332 of 1994 BETWEEN : ANDREW KEE SUAN KOH
- Applicant (First Plaintiff)
AND
AH BOEY TAY
Respondent (First Defendant)
Catchwords:
Civil matter - Costs - Order of costs subsequent to delivery of judgment - Application for indemnity costs order - "Calderbank" letter - Rules of the Supreme Court, O 24A r 10(4) - Plaintiff entitled to costs on indemnity basis provided the Rules of the Supreme Court are complied with
Legislation:
Rules of the Supreme Court, O 24A r 10(4)
Result:
Application for indemnity costs order refused
(Page 2)
Representation:
Counsel:
Applicant (First Plaintiff) : Mr P Redding
Respondent (First Defendant) : Mr B P Wheatley
Solicitors:
Applicant (First Plaintiff) : Williams & Hughes
Respondent (First Defendant) : Murfett & Co
Case(s) referred to in judgment(s):
Calderbank v Calderbank [1975] 3 All ER 333
Multicon Engineering Pty Ltd v Federal Airports Corporation (1996) 138 ALR 425
Case(s) also cited:
Black v Lipovac & Ors (1998) Federal Court (FC) 4 June 1998
Dobb v Hackett (1993) 10 WAR 532
Wallace v Baulkham Hills Smash Repairs Pty Ltd (No 2), unreported; SCt of NSW; 21 August 1995
(Page 3)
1 SCOTT J: Judgment in this matter was delivered on 15 October 1999 in favour of the first plaintiff against the first defendant. Subsequent to the delivery of the judgment, a further hearing was held on 22 October, so that formal orders could be made. These reasons relate to the costs order made on that day.
2 At the hearing, counsel for the plaintiff moved for judgment against the first defendant in the sum of $642,013.41.
3 Counsel for the plaintiff sought an order for costs against the first defendant on an indemnity basis from 7 April 1999. The plaintiff argued that there was a proper basis for such an order because, “a Calderbankstyle letter was sent to the solicitors for the defendant on 29 March 1999”. A copy of that letter was produced to the court. The plaintiff sought to rely upon the Calderbank letter in support of his application for an indemnity costs order.
4 Indemnity costs in these circumstances are governed by O 24A of the Rules of the Supreme Court. Compliance with that order is, in my opinion, the appropriate method of securing an order for indemnity costs. The plaintiff contended that an offer to compromise need not be in terms of O 24A for indemnity costs to be awarded. The plaintiff’s offer to settle was not in the terms of O 24A. Instead, the plaintiff relied upon the authority of Calderbank v Calderbank[1975] 3 All ER 333 and what is commonly referred to as a "Calderbank" letter.
5 Order 24A of the Rules of the Supreme Court prescribes a method of offering to compromise in such a way as to enable a successful party to obtain an indemnity costs order. Counsel for the plaintiff submitted that, “Order 24A, really is directed towards defendants making offers to settle to the plaintiff”. I respectfully disagree. Order 24A rule 10(4) refers expressly to the plaintiff. It provides:
“10(4). Where an offer is made by a plaintiff and not accepted by the defendant, and the plaintiff obtains judgment on the claim to which the offer relates no less favourable to him than the terms of the offer, then, unless the Court otherwise orders, the plaintiff shall be entitled to an order against the defendant for his costs in respect of the claim from the date on which the offer was made, taxed on an indemnity basis in addition to his costs incurred before that date, taxed on a party and party basis”.
(Page 4)
6 The plaintiff relied upon other authorities including the decision in Multicon Engineering Pty Ltd v Federal Airports Corporation(1996) 138 ALR 425. In that case Rolfe J said at 451:
“In my opinion the proper approach to take to an offer of compromise, whether made under the Rules or pursuant to a Calderbank letter, is that…the party rejecting the offer should pay the costs of the other party on an indemnity basis from the date of the making of the offer”.
7 If this judgment is accepted and Calderbank letters are an additional way of obtaining indemnity costs, the question arises as to why O 24A exists at all. Counsel for the plaintiff submitted that, “it is there for the same reason, save that there are two methods by which parties can offer to settle”. The commentary on O 24A at 24A.10.2 in Seaman "Supreme Court Practice" states:
“It should not be assumed that the mere writing of a Calderbank letter by a plaintiff making an offer to the defendant which is not less favourable than the judgment recovered generates the same presumptive entitlement to an order for indemnity costs. The circumstances would have to take the case out of the ordinary or usual category: MGICA (1992) Ltd v Kenny & Good Pty Ltd (No 2) (1996) 70 FCR 236 at 240; 140 ALR 707 at 711”.
8 In my opinion, there was nothing in the plaintiff’s submission that made it inordinate or unusual. If the plaintiff wanted to protect his position in relation to costs, the appropriate method would have been to serve a notice under O 24A of the Rules of the Supreme Court. This rule expressly state that the plaintiff "shall" be entitled to costs on an indemnity basis, provided the terms of the rule is complied with. The rules provide a legislative process to enable the plaintiff to obtain the order sought. The orders made were in accordance with the Rules of the Supreme Court.
9 The orders made were:
1. The first defendant pay the first plaintiff the sum of $641,681.07 damages.
2. The second plaintiff’s claim be dismissed.
3. The plaintiffs claim against the second defendant be dismissed.
(Page 5)
4. The plaintiffs have a certificate for transcript.
5. The plaintiffs have a certificate for second counsel.
6. The first defendant pay the plaintiff’s costs of the action to be taxed.
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