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Lollis v Loulatzis (No 2)

Lollis v Loulatzis (No 2)

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Case Copied 20 February 2008 27 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 8583 of 2003

STELLA LOLLIS	Plaintiff
V
ANTHONY KASI LOULATZIS	First Defendant
and
IRENE PETRUCCELLI	Second Defendant

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JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 February 2008
DATE OF JUDGMENT:	20 February 2008
CASE MAY BE CITED AS:	Lollis v Loulatzis & Anor (No 2)
MEDIUM NEUTRAL CITATION:	[2008] VSC 35

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COSTS – Calderbank offers – Whether unreasonable for defendants not to have accepted three offers – Reduction of costs awarded to successful plaintiff – Conduct of plaintiff unnecessarily protracting trial – Apportionment of costs between claim and counterclaim – Reserved costs.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms C.H. Sparke	Middletons
For the First Defendant	Mr R. Kendall Q.C. and Mr J.D. Mattin	N.A. Young & Co
For the Second Defendant	Mr R. Kendall Q.C. and Mr J.D. Mattin	Beaumont Lawyers

HIS HONOUR:

In this matter I delivered judgment on 18 December 2007. As a consequence of that judgment, the following orders will be made:

(1)There will be an order in favour of the plaintiff against both defendants for possession of the property at 25 Green Street, Camberwell.
(2)The claim by the plaintiff for damages against both defendants will be dismissed.
(3)The counterclaim by the first defendant will be dismissed.

After delivering judgment, I stood the matter over in order to give counsel the opportunity to read my reasons, and to make submissions in relation to the appropriate orders, and as to costs. When the matter came back before me, the first issue related to the period for which the order for possession would be stayed. After hearing argument I concluded that the order should be stayed until 15 March 2008, and I gave my reasons ex tempore for doing so. The parties also raised four issues relating to the question of costs. They were:

1.The effect of three “Calderbank” offers of compromise made by the solicitors for the plaintiff to the solicitors for the defendants.
2.The question whether the plaintiff should be entitled to the whole, or only a proportion, of her costs of the trial.
3.The apportionment of the costs of the plaintiff between the claim (to which both defendants were parties) and the counterclaim (to which only the first defendant was a party).
4.Whether either the plaintiff or the defendants should be entitled to the costs which were reserved before Williams J on 15 March 2006, when her Honour adjourned the proceeding to the Listing Master.

The Calderbank offers

In the course of the proceeding, the solicitors for the plaintiff served three letters, respectively dated 18 August 2005, 15 November 2007, and 22 November 2007, on the solicitors for the defendant. In each letter, the plaintiff made an offer to settle the claim and the counterclaim. Each letter was expressed to be “without prejudice save as to costs”. Such offers are commonly described as “Calderbank” offers.[1] The plaintiff maintains that, in light of the service of…

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: [2008] VSC 35
Decision Date: 20 February 2008

CaseChat Overview and Summary

Lollis v Loulatzis (No 2) involves a dispute between two parties, Lollis and Loulatzis, concerning costs incurred in a trial. The court had to determine whether it was reasonable for Loulatzis not to accept three Calderbank offers made by Lollis, whether the costs awarded to Lollis should be reduced, and how the costs should be apportioned between the claim and counterclaim. The court found that Loulatzis's refusal to accept the offers was not unreasonable, leading to a reduction in the costs awarded to Lollis. The court also held that Lollis's conduct unnecessarily protracted the trial, further impacting the costs assessment. The court ordered that the costs should be apportioned between the claim and counterclaim and reserved certain costs pending further submissions.

The primary legal issue the court had to address was whether Loulatzis's refusal to accept Lollis's Calderbank offers was unreasonable. Additionally, the court considered whether Lollis's conduct during the trial had unnecessarily prolonged the proceedings, affecting the costs awarded. The court also had to determine how the costs should be apportioned between the claim and counterclaim and whether certain costs should be reserved pending further submissions. These issues were central to the court's decision on the final costs order.

The court ruled that Loulatzis's refusal to accept Lollis's Calderbank offers was not unreasonable, leading to a reduction in the costs awarded to Lollis. The court found that Lollis's conduct during the trial unnecessarily protracted the proceedings, impacting the costs assessment. The court decided that the costs should be apportioned between the claim and counterclaim, with certain costs reserved pending further submissions. This comprehensive approach ensured that the court's final order was fair and balanced, taking into account all relevant factors.

Orders