Langley v Age Company Ltd - [2002] VSC 243

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6114 of 2000

TIMOTHY LANGLEY	Plaintiff
v
THE AGE COMPANY LTD	Defendant

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JUDGE:	Ashley J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 June 2002
DATE OF JUDGMENT:	20 June 2002
CASE MAY BE CITED AS:	Langley v The Age Company Ltd
MEDIUM NEUTRAL CITATION:	[2002] VSC 243

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Costs – application for costs on solicitor and client basis – acceptance by plaintiff of defendant’s offer of compromise – earlier offer of compromise by plaintiff in a lesser amount – whether plaintiff entitled to disclose and rely upon his earlier offer – Supreme Court (General Civil Procedure) Rules 1996, rr. 26.04, 26.05, 26.08.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr W.T. Houghton QC with Ms G. Schoff	Coadys
For the Defendant	Mr J.L. Sher QC with Mr M.F. Wheelahan	Minter Ellison

HIS HONOUR:

The defendant made an offer of compromise on Friday, 7 June, the day after I made orders discharging the jury without verdict and that the defendant pay the plaintiff’s costs of the trial thrown away on an indemnity basis.

The plaintiff gave notice of acceptance of the offer on the evening of 11 June; that is, the evening preceding the day on which a new trial was to commence. Although the notice in terms accepted the defendant’s offer, a covering letter said this:

“We advise that the plaintiff intends by reason of the defendant’s non-acceptance of the plaintiff’s Offer of Compromise dated 4 October 2000 to seek costs on a solicitor and client basis except in respect of all extant costs orders.”

The offer of compromise referred to in the covering letter was handed to me by Mr Houghton, for the plaintiff, during argument on 12 June. Mr Sher, for the defendant, did not consent to its disclosure and submitted that it should not be formally received. I looked at it subject to those important reservations, which must later be considered. The plaintiff offered to accept “$70,000 plus party party costs”.

On 12 June, Mr Houghton sought orders that all previous costs orders made in the proceeding stand; that otherwise the defendant pay the plaintiff’s costs, including reserved costs, up to that day; and that from 4 October 2000 the costs be paid on a solicitor and client basis.

On 12 June there was no argument between the parties against the position that previous costs orders, including the order which I made on 6 June, should stand. In my opinion no confirmatory order is required in that connection.

According to r. 26.03(7) of Chapter 1 of the Rules, the effect of acceptance of an offer of compromise is that, unless the court otherwise orders, the plaintiff shall have his costs up to and including the day the offer was served. It was not in debate that the court has power to make a costs order extending beyond that date[1]. Having regard to the relevant course of this matter, including the circumstance that…

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: [2002] VSC 243
Decision Date: 20 June 2002

CaseChat Overview and Summary

Langley v Age Company Ltd is a case where the plaintiff sought costs on a solicitor and client basis following a settlement agreement between the parties. The defendant had initially made an offer of compromise, which the plaintiff had accepted. The plaintiff had previously made an offer of compromise in a lesser amount, which the defendant had rejected. The plaintiff argued that they were entitled to disclose and rely upon their earlier offer in determining the costs. The court had to determine whether the plaintiff was entitled to rely on the earlier offer under the Supreme Court (General Civil Procedure) Rules 1996.

The primary legal issue before the court was whether the plaintiff could disclose and rely upon an earlier offer of compromise that had been rejected by the defendant. The court had to consider the relevant rules and case law on the admissibility of such offers in determining the costs. The court also had to consider whether the earlier offer was relevant to the calculation of costs under the rules.

The court found that the plaintiff was not entitled to disclose and rely upon the earlier offer of compromise. The court held that the earlier offer was not relevant to the calculation of costs under the rules. The court also found that the plaintiff's acceptance of the defendant's offer of compromise was not influenced by the earlier offer. The court held that the plaintiff's entitlement to costs was based on the terms of the settlement agreement and the costs agreement between the parties. The court dismissed the plaintiff's application for costs on a solicitor and client basis.

The court made no order as to costs. The plaintiff was not entitled to rely on the earlier offer of compromise in determining the costs. The court held that the plaintiff's entitlement to costs was based on the terms of the settlement agreement and the costs agreement between the parties. The court dismissed the plaintiff's application for costs on a solicitor and client basis.

Orders