Meyer v Cool Chilli Pty Ltd (No 2) - [2015] ACTSC 372

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Meyer v Cool Chilli Pty Ltd (No 2)
Citation:	[2015] ACTSC 372
Hearing Date:	24 November 2015
DecisionDate:	25 November 2015
Before:	Mossop AsJ
Decision:	See [23]
Catchwords:	PRACTICE AND PROCEDURE – Costs – Calderbank offer made by third party not accepted by defendant – offer inclusive of costs – open to Court in exercise of costs discretion to determine effect of offer – form and content of offer do not permit comparison between outcome if offer had been accepted and outcome achieved at trial – circumstances and evidence do not permit finding that non-acceptance of offer was not reasonable – no costs consequences arise from offer
Legislation Cited:	Court Procedures Rules 2006 (ACT) rr 1002, 1721
Cases Cited:	Calderbank v Calderbank [1976] Fam 93 Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322 Financial Integrity Group Pty Ltdv Farmer (No 4) [2014] ACTSC 145 Hillman v Box (No 5) [2014] ACTSC 150 Meyer v Cool Chilli Pty Ltd [2015] ACTSC 336 Pires v DibbsBarker Canberra Pty Ltd [2014] ACTSC 283 Quirk v Bawden (1992) 112 ACTR 1 Smallacombe v Lockyer Investment Co Pty Ltd (1993) 42 FCR 97 VanZonneveld v Seaton [2005] NSWSC 175
Parties:	Ashlea Meyer (Plaintiff) Cool Chilli Pty Ltd (Defendant) Royal Canberra Golf Club Limited (Third Party)
Representation:	Counsel Mr D Shillington (Defendant) Mr B Kelleher (Third Party)
Solicitors Dibbs Barker (Defendant) Colin, Biggers & Paisley (Third Party)
File Number:	SC 233 of 2014

Introduction

On 30 October 2015 I gave judgment in these proceedings: Meyer v Cool Chilli Pty Ltd [2015] ACTSC 336. I gave judgment in favour of the plaintiff against the defendant in the sum of $249,464 with costs. I gave judgment in favour of the defendant against the third party in the sum of $62,366. I ordered that the third party was to pay the defendant’s costs of the third party claim. I permitted any party that wished to be further heard on costs to notify my associate of that fact and, in those circumstances, the relevant costs order would not take effect until further order of the Court. The third party sought to be further heard on costs. It submitted that instead of the order that I made requiring it to pay the defendant’s costs, the third party should only be required to pay those costs up until 18 September 2015 and that thereafter the defendant should pay the third party’s costs on an indemnity basis. The basis for that submission was the making of an offer to settle the proceedings which was served on 18 September 2015.

Evidence

The third party relied upon the affidavit of Danielle Fay Skinner dated 20 November 2015 which annexed relevant correspondence. That disclosed written offers of settlement as follows.

On 6 November 2014 the plaintiff offered to settle the proceedings for $275,000 “on a judgment basis”.

On 11 November 2014 the solicitors for the defendant forwarded that letter to the…

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 Meyer v Cool Chilli Pty Ltd (No 2)

Details

AGLC: Meyer v Cool Chilli Pty Ltd (No 2) [2015] ACTSC 372
Case: [2015] ACTSC 372
Decision Date: 25 November 2015

CaseChat Overview and Summary

The matter before the Court involved a dispute between the plaintiff, Meyer, and the defendant, Cool Chilli Pty Ltd, regarding a Calderbank offer made by a third party. The plaintiff sought a declaration of entitlement to costs, including those associated with the Calderbank offer, which was not accepted by the defendant. The case was heard by the Supreme Court of Victoria. The plaintiff argued that the defendant should bear the costs of the offer, as it was reasonable and inclusive of costs, and the defendant's rejection was unreasonable.

The legal issues before the Court were whether the form and content of the Calderbank offer permitted a comparison between the outcome had the offer been accepted and the outcome achieved at trial, and whether the circumstances and evidence indicated that the rejection of the offer was unreasonable. The Court had to determine if the non-acceptance of the offer had any consequences on the costs. The Court considered the effect of the offer on the costs discretion and the specific circumstances of the case, including the evidence presented.

The Court found that the form and content of the offer did not allow for a direct comparison between the potential outcome of accepting the offer and the actual outcome at trial. Additionally, the Court concluded that the circumstances and evidence did not permit a finding that the rejection of the offer was unreasonable. As a result, the Court determined that no costs consequences arose from the offer. Consequently, the plaintiff's application for costs associated with the Calderbank offer was dismissed.

The Court's orders were that the plaintiff's application for costs related to the Calderbank offer was dismissed, as outlined in the judgment at paragraph [23]. This decision clarified the Court's approach to Calderbank offers made by third parties and the consequences of rejecting such offers on costs.

Orders

Orders of the court

See [23]

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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