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Maestrale v Aspite (No 2)

Maestrale v Aspite (No 2)

Case [2012] NSWSC 1421 22 November 2012

Costs

Limitation Periods

Abuse of Process

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Maestrale v Aspite (No 2) [2012] NSWSC 1421
Hearing dates: 16/11/2012
Decision date: 22 November 2012
Before: Fullerton J
Decision:
See Maestrale v Aspite [2012] NSWSC 1421 for final orders

Catchwords: PROCEDURE - costs - offer of compromise - defendants offered to compromise by paying plaintiff's costs "as assessed or agreed" - whether offer complied with r 20.26 UCPR - whether defendants entitled to costs on indemnity basis - whether offer operated as Calderbank offer - whether costs order should be discounted by reason of plaintiff's conduct of litigation
Legislation Cited: Uniform Civil Procedure Rules 2005
Cases Cited: Cheal Industries Pty Ltd, Re; Fitzpatrick v Cheal [2012] NSWSC 932
Dean v Stockland Property Management Pty Ltd (No 2) [2010] NSWCA 141
Egan v Mangarelli & Ors (No 2) [2012] NSWSC 1226
JKB Holdings Pty Ltd v de la Vega (No 5) [2012] NSWSC 1238
MacDougall v Curlevski (1996) 40 NSWLR 430
Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15
Old v McInnes and Hodgkinson [2011] NSWCA 410
Rail Corp NSW v Vero Insurance Ltd (No 2) [2012] NSWSC 926
Sahab Holdings Pty Limited v Registrar-General & Anor (No 3) [2010] NSWSC 403
Vieira v O'Shea [2012] NSWCA 21
Ziliotto v Hakim (No 2) [2012] NSWSC 1079
Category: Costs
Parties: Aldo Maestrale (Plaintiff)
Dante Aspite (1st Defendant)
Bartholomew Rando (2nd Defendant)
Representation: Counsel:
JE Rowe (Plaintiff)
J Downing (Defendants)
Solicitors:
MMD Law (Plaintiff)
HWL Ebsworth Lawyers (Defendants)

File Number(s): 2008/289388

Judgment

HER HONOUR: On 8 November 2012 I published my findings on the issue of liability and my findings on the disputed issues of fact that were argued at the hearing bearing upon the calculation of damages ([2012] NSWSC 1420). The parties were directed to prepare a schedule of damages in accordance with those findings to enable final orders to be made. I stood over the question of costs to the adjourned date as neither party had addressed costs in the substantive hearing.

At the resumed hearing Mr Rowe submitted that my approach to the calculation of damages was infected with error and that I should hear further argument with a view to revising my published judgment to correct that error. Unsurprisingly, Mr Downing opposed that application. I invited Mr Rowe to identify the nature of the error in order to see whether it was a matter that might attract the application of the "slip rule" in which case, despite the opposition of the defendants, it might be appropriate to amend the judgment. It was obvious from the fact that Mr Rowe wished to refer me to the report of a forensic accountant not in evidence, and to advance further submissions as to how I should approach an assessment of the plaintiff's loss contrary to my published findings, that his application was, in effect, to reopen the proceedings. That application was refused.

Mr Downing provided a schedule of damages drawn by reference to my published findings and the evidence.…

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.

Continue reading Maestrale v Aspite (No 2)

Details

AGLC: Maestrale v Aspite (No 2) [2012] NSWSC 1421
Case: [2012] NSWSC 1421
Decision Date: 22 November 2012

CaseChat Overview and Summary

The case of Maestrale v Aspite (No 2) involved a dispute between the plaintiff and the defendants regarding the assessment of costs in the proceedings. The matter was before the court, which had to determine several key legal issues related to the offer of compromise made by the defendants. The primary question was whether the defendants' offer to pay the plaintiff's costs "as assessed or agreed" complied with the relevant rules of the Uniform Civil Procedure Rules (UCPR). Additionally, the court had to decide whether the defendants were entitled to costs on an indemnity basis and whether the offer operated as a Calderbank offer. The court also considered whether the costs order should be reduced due to the plaintiff's conduct during the litigation.

The court examined the nature of the offer of compromise made by the defendants. It found that the offer to pay costs "as assessed or agreed" did not explicitly state the method by which the costs would be assessed, which was a requirement under rule 20.26 UCPR. Consequently, the court concluded that the offer did not comply with the rules. Furthermore, the court found that the offer did not operate as a Calderbank offer, which would have required the plaintiff to accept the offer or suffer adverse consequences regarding costs if the plaintiff did not obtain a more favourable outcome at trial. The court also considered the plaintiff's conduct during the litigation, including the pursuit of certain claims that were ultimately unsuccessful. However, the court decided not to reduce the costs order based on the plaintiff's conduct.

In its judgment, the court ordered that the defendants were to pay the plaintiff's costs on an indemnity basis, meaning that the defendants were responsible for all costs incurred by the plaintiff in the proceedings. The court emphasised the importance of adhering to the rules regarding offers of compromise and noted that the defendants' offer did not comply with the requirements of rule 20.26 UCPR. The court also highlighted that the plaintiff's conduct during the litigation, while not warranting a reduction in the costs order, was a factor that it had taken into account in determining the appropriate costs order. The final orders of the court were that the defendants were to pay the plaintiff's costs on an indemnity basis, without any reduction for the plaintiff's conduct.

Orders