Moon v Whitehead (No 2)

[2015] ACTCA 41

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Moon v Whitehead (No 2)

Citation:

[2015] ACTCA 41

Hearing Date:

4 August 2015

DecisionDate:

4 August 2015

Before:

Murrell CJ, Penfold and Burns JJ

Decision:

Application for indemnity costs refused. See [14]-[18].

Category:

Costs

Catchwords:

COSTS – Calderbank Offer – rejection – reasonableness – discretion to refuse indemnity costs

Legislation Cited:

Court Procedures Rules 2006 (ACT) r 1906(2)

Cases Cited:

Moon v Whitehead [2015] ACTCA 17

Vizovitis v Ryan (No 2) [2014] ACTSC 301

Parties:

Michael Moon (Appellant)

Sharon Whitehead (Respondent)

Representation:

Counsel

No Appearance (Appellant)

Mr C Painter (Respondent)

Solicitors

No Appearance (Appellant)

Snedden Hall & Gallop (Respondent)

File Number:

ACTCA 1 of 2014

Decision under appeal: 

Court:  ACT Supreme Court

Before:  Master Harper

Date of Decision:         5 December 2013

Case Title:  Sharon Whitehead v Michael Moon

Citation: [2013] ACTSC 243

THE COURT:

1. On 22 May 2015 the Court of Appeal ordered that the appellant pay the respondent's costs of the appeal on a party/party basis unless an application for a different costs order was made within 14 days.

1. The respondent applied for a different costs order; that the appellant pay the respondent’s costs of the appeal on a party/party basis up to 12 August 2014 and thereafter on an indemnity basis.

1. The respondent also seeks orders that:

(a)The security paid by the appellant into the Court, including any accrued interest, be released to the respondent, through her solicitor, and be offset against the costs of the appeal owed to the respondent by the appellant.

(b)The appellant pay the respondent’s costs of the application.

Background

1. On 5 December 2013 Master Harper found in favour of the respondent on a claim for assault brought against the appellant. The Master entered judgment in the sum of $668,856.00, including $10,000.00 for aggravated damages. The appellant was ordered to pay party/party costs.

1. On 2 January 2014, the appellant lodged an appeal. 

1. On 2 April 2014, Penfold J ordered that the appellant pay $10,000.00 into Court for security for costs.

1. On 12 August 2014, the respondent made a Calderbank offer. In brief, the terms of the offer were as follows:

(a)The appellant would withdraw his appeal.

(b)The respondent would accept nil dollars in respect of the judgment sum ordered by the Master Harper.

(c)The appellant would pay $110,000.00 to the respondent in satisfaction of the costs order in her favour.

(d)The appellant would agree to the respondent informing Medicare that the respondent was unsuccessful in recovering any amount for compensatory damages.

(e)The appellant would agree to the respondent informing her private insurer that she was unsuccessful in recovering any amount for compensatory damages.

1. The offer remained open for a period of 14 days. It was not accepted.

1. On 22 May 2015 the Court of Appeal allowed the appeal in part, reducing the damages awarded by the Master Harper by $10,000.00 because no award should have been made for aggravated damages. This left the respondent with judgment in the sum of…