McLennan v Meyer Vandenberg (No 2) - [2020] ACTCA 15

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 Court Procedures Rules 2006 (ACT), rr 1002(2)(b)(ii), 1721, 1725, 5001, pt 2.10, sch 2.1 Fair Trading Act 1992 (ACT) Magistrates Court Act 1930 (ACT), ss 257, 258 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 McLennan v Clapham [2019] ACTSC 1 McLennan v Clapham & Ors (No 2) [2019] ACTSC 100 McLennan v Meyer Vandenberg [2020] ACTCA 7 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…

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 McLennan v Meyer Vandenberg (No 2)

Details

AGLC: McLennan v Meyer Vandenberg (No 2) [2020] ACTCA 15
Case: [2020] ACTCA 15
Decision Date: 3 April 2020

CaseChat Overview and Summary

McLennan v Meyer Vandenberg (No 2) concerned a cross-appeal and an appeal against a costs order made by a primary judge. The dispute arose from a claim brought by McLennan against Meyer Vandenberg.

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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