Matthew Maxwell v Highway Hauliers Pty Ltd
[2013] WASCA 115 (S)
•5 JULY 2013
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA |
| TITLE OF COURT : | THE COURT OF APPEAL (WA) | |
| CITATION | : | MATTHEW MAXWELL -v- HIGHWAY HAULIERS PTY LTD [2013] WASCA 115 (S) |
| CORAM | : McLURE P PULLIN JA MURPHY JA | ||
| HEARD |
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| DELIVERED |
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| FILE NO/S |
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| BETWEEN | : MATTHEW MAXWELL |
Appellant
AND
HIGHWAY HAULIERS PTY LTD
Respondent
ON APPEAL FROM:
| Jurisdiction | : | SUPREME COURT OF WESTERN AUSTRALIA |
| Coram | : CORBOY J | ||
| Citation |
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| File No |
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[2013] WASCA 115 (S)
Catchwords:
Costs - Whether unreasonable rejection of a Calderbank offer
Legislation:
Legal Practitioners (Supreme Court) (Contentious Business) Determination
2012 (WA)
Result:
Application for indemnity costs allowed
Category: B
Representation:
Counsel:
| Appellant | : | Mr D J Higgs SC & Mr J A Thomson SC |
| Respondent | : | Mr G R Hancy |
Solicitors:
| Appellant | : | CLS Lawyers |
| Respondent | : | WHL Legal Pty Ltd |
Case(s) referred to in judgment(s):
Commissioner of State Revenue v Artistic Pty Ltd [2008] WASCA 24 (S)
Ford Motor Co of Australia Ltd v Lo Presti [2009] WASCA 115; (2009) 41
WAR 1
Highway Hauliers Pty Ltd v Matthew Maxwell [2012] WASC 53
Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S)
| REASONS OF THE COURT | [2013] WASCA 115 (S) |
REASONS OF THE COURT: These reasons deal with an issue about costs of the appeal. In the judgment appealed against, the respondent was awarded $571,710.03 for breach of an insurance contract which comprised of $299,807.09 by way of indemnity under the insurance policy, $145,000 for consequential loss, and interest pursuant to s 32 of the Supreme Court Act 1935 (WA): see Highway Hauliers Pty Ltd v Matthew Maxwell [2012] WASC 53. The appellant's appeal was dismissed.
2 The respondent seeks an order that the appellant pay the costs of the
appeal to be taxed. The appellant does not oppose that order. The
respondent also applies for an order that:Except insofar as they are an unreasonable amount or were unreasonably incurred, the respondent be completely indemnified by the appellant for its costs of the appeal from 4 September 2012.
The appellant opposes that order.
4 The parties were ordered to file written submissions, and both parties
have done so. An order has also been made that the application be
determined on the papers.5 The respondent seeks the order for indemnity costs because of the
unreasonable rejection of a Calderbank offer which the respondent had made to the appellant. This application is supported by an affidavit sworn by the respondent's lawyer revealing that the Calderbank offer was made by letter dated 28 August 2012, giving the appellant until 4 September 2012 to accept the offer. The offer in the letter was essentially that the respondent would concede ground 2 of the appeal if the appellant abandoned ground 1. In effect, by offering to concede ground 2, the respondent was prepared to give up the damages it had been awarded by the trial judge for the consequential loss of $145,000. The respondent's offer was rejected.
6 The affidavit sworn also reveals that costs raised against the
respondent by its lawyers for the legal work performed after 4 September 2012 exceed the maximum amount recoverable under the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2012 (WA) (Determination). The affidavit reveals that the total of the costs in excess of the maximum recoverable under the Determination is $8,239. The affidavit also reveals that a significant amount of those extra costs relate to problems associated with settling the appeal book indexes and in the preparation of the appeal for hearing. A smaller component is
| REASONS OF THE COURT | [2013] WASCA 115 (S) |
for counsel fees, which only slightly exceed the maximum permitted
under the relevant item in the Determination.7 Considerations which are often relevant to the determination of
whether an indemnity costs order will be made after the rejection of Calderbank letter are referred to in Ford Motor Co of Australia Ltd v Lo Presti [2009] WASCA 115; (2009) 41 WAR 1 [16] - [19].
8 The appellant does not make any complaint about the stage at which
the offer was made, the time given to consider the offer, or the clarity of the terms of the offer. The extent of the compromise offered was significant, and the offer did foreshadow an application for indemnity costs in the event of the offeree rejecting the offer. Costs to be charged by the respondent's lawyer after 4 September 2012 exceed the maximum allowed in the Determination. Those factors all strongly favour the making of the indemnity costs order. The rejection of the offer was unreasonable.
9 The appellant raised two points in opposition to the order for
indemnity costs. The first was that the order of indemnity costs was said to be reserved for exercise in cases where the court wishes to mark its disapproval of a party's conduct. Two cases were cited by the respondent, namely, Commissioner of State Revenue v Artistic Pty Ltd [2008] WASCA 24 (S) [3]; Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S) [10]. Neither of those cases are relevant. They were not cases involving the rejection of a Calderbank offer. In cases where indemnity costs orders are sought based on the conduct of a party, different considerations apply.
10 The second point raised by the appellant was that the court 'cannot be
satisfied that the costs which would be recovered under the usual scale or under a special costs order would be inadequate'. The respondent proved by affidavit that the respondent's costs will exceed the maximum allowed under the Determination. The appellant merely submitted that the maximum amount claimed by way of costs over the maximum amount allowed under the scale is 'small'. That is no reason for refusing to make the order.
11 Orders should be made as sought by the respondent, and the
respondent should also have the costs associated with the resolution of the
dispute about the order for costs.
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