| 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 | 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…
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- Case
- [2002] VSC 243
- Decision Date
CaseChat Overview and Summary
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.
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