Costs – written offers made – Calderbank offer – Issues – Full indemnity costs sought.
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APPEARANCES:
Counsel
Solicitors
For the Plaintiff
Mr R.B. Kendall QC with Mr A. Phillips
Wilmoth Field and Warne
For the Defendants
Mr P.J. Kennon QC
Eggleston Clifton-Jones & Co
HIS HONOUR:
Introduction
On 14 March 2000 the court delivered its reasons for judgment in the second part of the trial of this proceeding.
The court proposed an order that Sietel Ltd pay the sum of $2,772,072.10 for the 400 shares held by M.T. Associates Pty Ltd in the company Aqua-Max Pty Ltd.
The proceeding was adjourned to enable the parties to check the calculations made in the reasons for judgment, to consider the form of the judgment and to make submissions on costs.
At the adjourned hearing on 16 March 2000 the plaintiff raised a number of difficult questions and the proceeding was adjourned to 22 March 2000.
One of the difficult issues raised was the claim by M.T. Associates as plaintiff for an order for costs which included a substantial sum for premiums paid to an insurance company which funded the litigation. This is a somewhat novel claim.
However, after the proceeding was adjourned the plaintiff, M.T. Associates, abandoned that argument.
The plaintiff seeks the costs of the proceeding on a full indemnity basis. The first part of the trial was heard in 1998 and took some 53 sitting days. Having published my reasons on 18 June 1998 the court made orders on 18 July 1998 giving effect to the issues decided to that stage.
There were two proceedings heard together and orders made in the other proceeding which was No. 5966 of 1993 included orders with respect to costs of that proceeding.
However, the costs of the present proceeding were not dealt with.
Since that date two further hearings have taken place. The first concerned the cross‑summonses by the parties with respect to the referee's report and after hearing submissions on costs I ordered that each party should bear its own.
The second hearing commenced on 22 November 1999 and concluded on 15 February 2000. This was concerned with valuing the shares in Aqua-Max Pty Ltd and the amount that Sietel Ltd had to pay to purchase the shares held by M.T. Associates Pty Ltd in that company. The proceeding took 23 days.
Queries concerning reasons for judgment
In inviting the parties to consider the calculations I made it quite clear that…
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 MT Associates Pty Ltd v Aqua-Max Pty Ltd (No 3)
The matter before the court involved a dispute between MT Associates Pty Ltd and Aqua-Max Pty Ltd, primarily concerning the interpretation of certain contractual provisions and related claims for damages. The case was heard in the Supreme Court of Victoria. Aqua-Max initiated proceedings against MT Associates, alleging breaches of contract and seeking damages. MT Associates, in turn, issued a cross-claim against Aqua-Max. The crux of the legal battle centred on the interpretation of the contractual terms, specifically those that governed the obligations and entitlements of both parties.
The primary legal issues the court needed to address were the interpretation of the contractual provisions and the determination of whether Aqua-Max was entitled to the relief it sought. Furthermore, the court had to consider the implications of a Calderbank offer made by MT Associates, which proposed a settlement with full indemnity costs. This offer was made after Aqua-Max had issued its statement of claim but before the cross-claim was filed. The court had to assess whether the offer should impact the costs awarded, particularly in light of the ultimate outcome of the litigation.
The court meticulously reviewed the contractual documents and the evidence presented by both parties. It determined that the terms of the contract were clear and that Aqua-Max's claims were not substantiated. The court found that MT Associates was not liable for the breaches alleged. Given this finding, the court held that Aqua-Max was not entitled to the damages it sought and ordered it to pay MT Associates' costs on the standard basis, which included the costs of the cross-claim. The court also considered the Calderbank offer, concluding that the offer did not significantly alter the outcome and, therefore, did not warrant a deviation from the usual cost-bearing principles. Consequently, Aqua-Max was ordered to pay MT Associates' costs, including those of the cross-claim, on the standard basis.