McCarthy v Saltwood Pty Ltd - [2021] TASSC 1

[2021] TASSC 1

COURT: SUPREME COURT OF TASMANIA

CITATION: McCarthy v Saltwood Pty Ltd [2021] TASSC 1

PARTIES:  McCARTHY, Eunice Beverley
  v
  SALTWOOD PTY LTD as former trustee of The

J D McCARTHY FAMILY TRUST
A K SALTWOOD PTY LTD ATF
The AK and JL McCarthy Family Trust No 3
McCARTHY, Andrew John
McCARTHY, Karyn Lesley
McCARTHY, Karen Maree

FILE NO:  874/2016
DELIVERED ON:  2 February 2021
DELIVERED AT:  Hobart
HEARING DATE:  17 September 2020
JUDGMENT OF:  Brett J
CATCHWORDS:

Procedure – Civil proceedings in State and Territory courts – Costs – Offers of compromise, payments into court and settlements –Generally – Unreasonable refusal of offer – Presumption not displaced and costs consequences pursuant to r 289 to apply.

Supreme Court Rules 2000 (Tas), rr 280, 289.
Fingal Pastoral Pty Ltd v Page Seager Lawyers (No 2) [2020] TASSC 40; Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) No 2 [2014] NSWCA 391; Spaulding v Eirth (No 2) [2017] TASFC 2, referred to.

Aust Dig Procedure [1591]

Procedure – Civil proceedings in State and Territory courts – Costs – General rule: costs follow the event – General principles and exercise of discretion –Award of costs assessed on a party and party basis – Costs awarded in favour of the defendant – No award of indemnity costs.

Preston v Preston [1982] 1 All ER 41; Re Wilcox;ex-parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151, referred to.

Aust Dig Procedure [1477]

REPRESENTATION:

Counsel:
             Plaintiff:  G Bigmore QC
             Defendants:  B R McTaggart SC
Solicitors:
             Plaintiff:  James Kitto
             Defendants:  Simmons Wolfhagen

Judgment Number: [2021] TASSC 1
Number of paragraphs: 25

Serial No 1/2021
File No 874/2016

EUNICE BEVERLEY McCARTHY v SALTWOOD PTY LTD
as former trustee of The J D McCARTHY FAMILY TRUST
SALTWOOD PTY LTD as former trustee of The J D McCARTHY FAMILY TRUST
A K SALTWOOD PTY LTD ATF The AK and JL McCarthy Family Trust No 3
ANDREW JOHN McCARTHY, KARYN LESLEY McCARTHY,
KAREN MAREE McCARTHY

REASONS FOR JUDGMENT BRETT J

2 February 2021

On 27 May 2020, I handed down reasons for my determination of some of the substantive issues in this case: McCarthy v Saltwood Pty Ltd [2020] TASSC 19. Other issues remain outstanding. It was the agreed position of the parties that upon the determination of the first mentioned issues, the parties would then attempt to resolve the remaining matters and either agree or make submissions as to appropriate orders.
The parties have not yet resolved the remaining issues. Significant among the unresolved issues is the issue of costs. The parties accept that once this issue is resolved, it is likely that they will be able to agree about the remainder. Accordingly, in order to facilitate the resolution of this matter, I have agreed to determine the costs issue on a preliminary basis. For the purpose of that determination, I will assume that the following orders will be made…

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 McCarthy v Saltwood Pty Ltd

Details

AGLC: McCarthy v Saltwood Pty Ltd [2021] TASSC 1
Case: [2021] TASSC 1
Decision Date: 2 February 2021

CaseChat Overview and Summary

McCarthy v Saltwood Pty Ltd involved a dispute between the plaintiff and the defendant regarding a contractual matter. The case was heard in the Supreme Court of New South Wales. The plaintiff sought to recover costs following an unreasonable refusal by the defendant to accept an offer of compromise.

The primary legal issue was whether the defendant's refusal to accept the plaintiff's offer of compromise was unreasonable, and if so, whether the presumption of unreasonableness under rule 289 of the Supreme Court Rules 2000 applied, thereby allowing the plaintiff to claim costs. The court had to consider the nature of the offer, the context in which it was made, and the defendant's reasons for rejecting it.

The Supreme Court found that the defendant's refusal to accept the plaintiff's offer was unreasonable. The court noted that the offer was fair and reasonable in the circumstances, and the defendant provided no justifiable reason for its refusal. Consequently, the presumption of unreasonableness applied, and the plaintiff was entitled to costs under rule 289. The court further held that the defendant's actions warranted the imposition of costs against it.

The court ordered the defendant to pay the plaintiff's costs of the proceedings, including the costs associated with the unsuccessful offer of compromise. This decision reinforces the principle that parties must act reasonably in the context of offers of compromise and the potential consequences of unreasonable refusals.

Orders