MICHAUD -v- STEFANOVSKI [2016] WASCA 85 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WASCA 85 (S)
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:3/2015	Heard:	ON THE PAPERS
Coram:	MARTIN CJ BUSS JA MURPHY JA	Delivered:	16/09/16
No of pages:	5	Judgment Part:	1 of 1
Result:	Appellant to pay respondent's costs up to and including 29 April 2015 Appellant to pay respondent's costs on and from 30 April 2015, on indemnity basis
Category:	B
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Parties:	ROGER MARCEL MICHAUD DANNY DRAGI STEFANOVSKI
Catchwords:	Practice and procedure Costs Calderbank offer by respondent in appeal Respondent's offer, in effect, to forego costs at first instance Critical factor being weakness of appeal Turns on its own facts
Legislation:	Nil
Case References:	Ford Motor Company of Australia Ltd v Lo Presti [2009] WASCA 115; (2009) 41 WAR 1 Owston Nominees No 2 Pty Ltd v Clambake Pty Ltd [2011] WASCA 76 (S)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MICHAUD -v- STEFANOVSKI [2016] WASCA 85 (S) CORAM : MARTIN CJ

BUSS JA

MURPHY JA

HEARD : ON THE PAPERS DELIVERED : 16 SEPTEMBER 2016 FILE NO/S : CACV 3 of 2015 BETWEEN : ROGER MARCEL MICHAUD

Appellant

AND

DANNY DRAGI STEFANOVSKI

Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : MCCANN DCJ

Citation : STEFANOVSKI -v- MICHAUD [2014] WADC 141

File No : CIV 3850 of 2011

Catchwords:

Practice and procedure - Costs - Calderbank offer by respondent in appeal - Respondent's offer, in effect, to forego costs at first instance - Critical factor being weakness of appeal - Turns on its own facts

Legislation:

Nil

Result:

Appellant to pay respondent's costs up to and including 29 April 2015

Appellant to pay respondent's costs on and from 30 April 2015, on indemnity basis

Category: B

Representation:

Counsel:

Appellant : Mr R W Bower

Respondent : Mr C McIntosh

Solicitors:

Appellant : Corser & Corser

Respondent : Swan River Law

Case(s) referred to in judgment(s):

Ford Motor Company of Australia Ltd v Lo Presti [2009] WASCA 115; (2009) 41 WAR 1
Owston Nominees No 2 Pty Ltd v Clambake Pty Ltd [2011] WASCA 76 (S)

1 REASONS OF THE COURT: These reasons concern the costs of the appeal. The appeal in this matter was an appeal against a decision of McCann DCJ in which his Honour ordered that the appellant pay the respondent the sum of $74,200, plus costs.

2 On 27 May 2016, the court delivered its decision dismissing the appeal.

3 At the delivery of reasons on 27 May 2016, the parties, by their respective counsel, requested that the decision on costs be reserved so that they could confer with a view to filing a minute of consent orders. The parties indicated that there was some prospect of an agreement as to costs. Counsel, on behalf of the appellant, said words to the effect that:

there was a Calderbank…

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 Michaud v Stefanovski

Details

AGLC: Michaud v Stefanovski [2016] WASCA 85 (S)
Case: [2016] WASCA 85 (S)
Decision Date: 16 SEPTEMBER 2016

CaseChat Overview and Summary

The appeal in Michaud v Stefanovski was heard by the Supreme Court of Queensland. The appellant, Michaud, was challenging the costs order made by the primary judge, which required Michaud to pay the respondent's costs. The respondent, Stefanovski, had made a Calderbank offer during the appeal, effectively agreeing to forego the costs incurred at first instance if the appeal was unsuccessful. The critical issue for the court was to determine whether the weakness of the appeal justified the respondent's costs from the date of the Calderbank offer.

The court considered the nature of the appeal and the respondent's Calderbank offer. A Calderbank offer is a conditional offer to settle the proceedings, made without admission of liability, which is often used to encourage settlement and reduce the overall costs of litigation. The court had to determine whether the appeal was weak enough to justify the respondent's costs from the date of the offer. The court noted that the appeal's weakness was a critical factor in this context, and the decision had to be made on its own facts.

The court found that the appeal was indeed weak and that the respondent's Calderbank offer was a significant factor in its reasoning. Given the appeal's lack of merit, the court considered it appropriate to order Michaud to pay the respondent's costs from the date of the Calderbank offer. The court ordered that Michaud pay the respondent's costs up to and including 29 April 2015, and from 30 April 2015, on an indemnity basis. This decision recognised the importance of encouraging settlements through Calderbank offers and the need to consider the strength of an appeal when determining costs.

Orders

Orders of the court

Appellant to pay respondent's costs up to and including 29 April 2015

Appellant to pay respondent's costs on and from 30 April 2015, on indemnity basis

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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