SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | McLennan v Meyer Vandenberg (No 2) |
Citation: | [2020] ACTCA 15 |
Hearing Date: | 12 November 2019 |
DecisionDate: | 3 April 2020 |
Before: | Burns and Mossop JJ and Robinson AJ |
Decision: | See [51] and [72] |
Catchwords: | CROSS-APPEAL – COSTS – against primary judge’s costs order – application of r 1725(2) Court Procedures Rules 2006 (ACT) – whether inclusion of equitable compensation in Statement of Claim insulates against application of the rule when that relief was not pursued – it does not – whether reasonable to reject Calderbank offer where pleaded case weak – it was not APPEAL – COSTS – costs of the substantive appeal – appellant only successful in obtaining pre-judgment interest – interest would have been awarded had the appellant directed the primary judge to it – ground of appeal on interest included as a costs ‘insurance policy’ – offer by respondent to pay pre-judgment interest – rejection of offer inconsistent with s 5A Court Procedures Act 2004 (ACT) – costs awarded to respondent upon issues in relation to which it was successful. |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT), s 35 Court Procedures Act 2004 (ACT), s 5A Trade Practices Act 1974 (Cth) |
Cases Cited: | Baltic Shipping Co v Dillon (1993) 176 CLR 344 CJD Equipment Pty Ltd v A&C Constructions Pty Ltd [2010] NSWSC 502 O’Doherty v McMahon [1971] VR 62 |
Parties: | Karen McLennan (First Appellant) Andrew Spong (Second Appellant) The Partnership of RA Clapham & Ors t/as Meyer Vandenberg (Respondent) |
Representation: | Counsel G Stretton SC and B Buckland (First and Second Appellant) M Walsh SC and M Karam (Respondent) |
| Solicitors J.S O’Connor Harris & Co (First and Second Appellant) McInnes Wilson Lawyers (Respondent) | |
File Numbers: | ACTCA 4 of 2019 ACTCA 18 of 2019 |
Decision under appeal: | Court/Tribunal: Supreme Court of the ACT Before: McWilliam AsJ Date of Decision: 18 April 2019 Case Title: McLennan v Clapham & Ors (No 2) Citation: [2019] ACTSC 100 |
THE COURT
Introduction
These reasons deal with the costs of the appeal (ACTCA 4 of 2019) which has been determined by the court: McLennan v Meyer Vandenberg [2020] ACTCA 7, as well as an appeal by Meyer Vandenberg against the costs order made by the primary judge (ACTCA 18 of 2019): McLennan v Clapham & Ors (No 2) [2019] ACTSC 100.
The appellants in ACTCA 4 of 2019 are the respondents in ACTCA 18 of 2019. In an attempt to avoid confusion as to the party being referred to, we will refer to the parties as McLennan (representing herself and Mr Spong) and Meyer Vandenberg respectively.
Meyer Vandenberg’s appeal on costs
The judgment below
The primary judge ordered…
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- AGLC
- McLennan v Meyer Vandenberg (No 2) [2020] ACTCA 15
- Case
- [2020] ACTCA 15
- Decision Date
CaseChat Overview and Summary
The court was required to determine two primary issues concerning costs. Firstly, whether the inclusion of equitable compensation in the statement of claim, even if not pursued, insulated the appellant from the application of rule 1725(2) of the Court Procedures Rules 2006 (ACT). Secondly, the court considered whether it was reasonable for the appellant to reject a Calderbank offer given the weakness of the pleaded case. The court also had to determine the costs of the substantive appeal, specifically in relation to the appellant's limited success in obtaining pre-judgment interest, and whether the rejection of an offer by the respondent to pay pre-judgment interest was consistent with section 5A of the Court Procedures Act 2004 (ACT).
The court held that the inclusion of equitable compensation in the statement of claim did not prevent the application of rule 1725(2) when that relief was not pursued. Furthermore, it was deemed unreasonable to reject a Calderbank offer when the pleaded case was weak. Regarding the substantive appeal, the appellant was only successful in obtaining pre-judgment interest, which would have been awarded by the primary judge had it been drawn to their attention. The court found that the ground of appeal concerning interest was pursued as a "costs insurance policy" and that the rejection of the respondent's offer to pay pre-judgment interest was inconsistent with section 5A of the Court Procedures Act 2004 (ACT). Consequently, costs were awarded to the respondent on the issues in relation to which it was successful.
The court made orders regarding the costs of the cross-appeal and the substantive appeal, with specific details provided in paragraphs [51] and [72] of the judgment.
Orders
Orders of the court
See [51] and [72]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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