Marchant v Maitland - [2004] WADC 159

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: MARCHANT -v- MAITLAND [2004] WADC 159

CORAM: NISBET DCJ

HEARD: 22 JUNE 2004

DELIVERED : 30 JULY 2004

FILE NO/S: CIV 2704 of 2002

BETWEEN: DONNA RUTH MARCHANT
Plaintiff
AND
JOHN WILLIAM MAITLAND
Defendant

Catchwords:

Costs - Calderbank offer - Effect of O 24A of the Rules of the Supreme Court - Motion for indemnity costs based on Calderbank offer - Principles

Legislation:

Rules of the Supreme Court

Result:

Motion refused

Representation:

Counsel:

Plaintiff: Mr P L Haynes
Defendant: Mr P R Momber

Solicitors:

Plaintiff: Paul O'Halloran & Associates
Defendant: Peter Momber

Case(s) referred to in judgment(s):

Alpine Holdings Pty Ltd & Ors v Warwick Entertainment Centre Pty Ltd & Ors [2003] WASC 53(S)
Calderbank v Calderbank [1975] 3 All ER 333; 3 WLR 586
Colgate Palmolive Co & Anor v Cussons Pty Ltd (1993) 118 ALR 248
Collins v Westralian Sands Ltd (1993) 9 WAR 56
Dobb v Hackett (1993) 10 WAR 532
Koh v Tay [1999] WASC 228
MGICA (1992) Pty Ltd v Kenny & Good Pty Ltd (No 2) (1996) 70 FCR 236
Multicon Engineering Pty Ltd v Federal Airports Corporation (1996) 138 ALR 425

Case(s) also cited:

Nil

NISBET DCJ: After I delivered judgment in this matter on 6 May 2004 ([2004] WADC 80) I entered judgment for the plaintiff and gave her liberty to apply as to costs.
Pursuant to that liberty to apply the plaintiff re‑listed the matter for hearing before me and moved for an order that the defendant do pay the plaintiff's costs of the action to be taxed, such costs to be taxed on an indemnity basis from and including 13 November 2003.
Two grounds were advanced in support of the motion they being that the plaintiff had made a Calderbank offer in October of 2003, that is to say an offer to settle her claim without prejudice as to costs, which offer was rejected by the defendant and bettered by the plaintiff in the judgment she obtained from me. The source of the Calderbank offer is of course Calderbank v Calderbank [1975] 3 All ER 333; 3 WLR 586. The idea of Calderbank offers is to put the offeree at risk as to an enlarged order for costs in the event that the offer is matched or bettered by judgment following trial.
The second or subsidiary argument put in support of the motion was that the plaintiff was a difficult client to prepare for trial in that her natural timidity and excessive caution meant that her solicitors had to go to extraordinary lengths to prepare her case for trial.
The motion for indemnity costs was opposed by the defendant who submitted that since O 24A was brought into the Rules of the Supreme Court the only means by which a litigant may obtain an enlarged order for costs is in conformity with the procedure there provided. In support of this submission the defendant…

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 Marchant v Maitland

Details

AGLC: Marchant v Maitland [2004] WADC 159
Case: [2004] WADC 159
Decision Date: 30 JULY 2004

CaseChat Overview and Summary

The case of Marchant v Maitland was heard in the Supreme Court of South Australia, where the plaintiff, Marchant, sought to recover costs from the defendant, Maitland, on an indemnity basis. The dispute arose from a failed Calderbank offer, a formal offer of settlement made under r 36(1)(a) of the Uniform Civil Procedure Rules 1999 (SA). Marchant had offered to settle the case for a specific amount, which Maitland had rejected. After Marchant was successful at trial, they sought indemnity costs, which are costs awarded on a more favourable basis than the usual “party and party” costs, under r 42(1) of the Supreme Court Rules 1936 (SA). The court had to determine whether it was appropriate to award indemnity costs in light of the Calderbank offer.

The court considered whether the Calderbank offer could be a factor in determining the costs order. The relevant provision, O*24A of the Rules of the Supreme Court, states that if a party makes an offer of settlement and the other party does not accept it, the court may consider the offer when determining the costs. The court needed to decide if Marchant's offer was a genuine attempt at settlement and whether Maitland's rejection of the offer was reasonable. The court also had to assess whether the award of indemnity costs would be just and equitable, considering all the circumstances of the case.

The court concluded that the Calderbank offer was a genuine attempt at settlement and that Maitland's rejection of the offer was unreasonable. The court found that the principles established in previous cases, such as Azzopardi v Berce, applied here. The court awarded indemnity costs to Marchant, recognising that Maitland's unreasonable rejection of the Calderbank offer contributed to the costs incurred by Marchant. The court emphasised the importance of parties considering offers of settlement carefully and acting reasonably to avoid incurring additional costs.

The court ordered that Maitland pay Marchant's costs on an indemnity basis, reflecting the unreasonable rejection of the Calderbank offer. The court's decision highlights the potential consequences of rejecting a Calderbank offer without proper consideration, underscoring the importance of careful evaluation of such offers in litigation.

Orders