Ning v McGrath (No 2) - [2015] ACTSC 213

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Ning v McGrath (No 2)
Citation:	[2015] ACTSC 213
Hearing Date:	20 July 2015
DecisionDate:	20 July 2015
Before:	Murrell CJ
Decision:	See [14].
Category:	Costs
Catchwords:	APPEAL – Costs – Calderbank offer – rejection – whether rejection unreasonable
Legislation Cited:	Court Procedures Rules 2006 (ACT) rr 1721(1), 1751
Cases Cited:	Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435 Ning v McGrath [2015] ACTSC 163 Oshlack v Richmond River Council (1998) 193 CLR 72 Pires v DibbsBarker Canberra Pty Limited [2014] ACTSC 283 Quirk v Bawden (1992) 112 ACTR 1
Parties:	Stephen Ning (Appellant) Aaron James McGrath (Respondent)
Representation:	Counsel Ms V Wilkinson (Appellant) Mr R Coen (Respondent)
Solicitors Sparke Helmore Lawyers (Appellant) Maurice Blackburn Lawyers (Respondent)
File Number:	SCA 77 of 2014
Decision under appeal:	Court: ACT Magistrates Court Before: Magistrate Dingwall Date of Decision: 19 August 2014 Case Title: McGrath v Ning Court File Number: CS 997 of 2012

MURRELL CJ:

Background

These personal injury proceedings came before the Magistrates Court in 2013. On 19 August 2014, the Magistrate gave judgment for the respondent in the sum of $193,150.45, finding that the appellant/defendant should bear all responsibility for the accident.

The appellant appealed against the findings on primary liability and contributory negligence. There was no appeal against the assessment of damages.

On 2 July 2015 I decided to allow the appeal and apportion to the respondent/plaintiff one third of the responsibility for the accident: Ning v McGrath [2015] ACTSC 163. I allowed the parties to make submissions in relation to the costs.

The appellant seeks an order for party/party costs up to and including 1 December 2014 and thereafter on an indemnity costs. On 31 October 2014, the appellant made a Calderbank offer to settle the proceedings on the basis of a 29.5% reduction for contributory negligence. The offer was open until 1 December 2014. It was not accepted by the respondent.

Determination of Costs

Any award of costs is discretionary: r 1721(1) of the Court Procedures Rules 2006 (ACT) (CPR). Prima facie, an unsuccessful party will be ordered to pay the costs of the successful party on a party/party basis: Oshlack v Richmond River Council (1998) 193 CLR 72 at 86; Pires v DibbsBarker Canberra Pty Limited [2014] ACTSC 283 at [92]; r 1751 of the CPR.

Generally speaking, where a party has made a Calderbank offer that has been unreasonably rejected, that party may expect to recover indemnity costs: Quirk v Bawden (1992) 112 ACTR 1 at. 5. A number of considerations arise when considering whether an offer has been unreasonably rejected: Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435 at [25]. The Court retains its discretion in relation to costs even where an offer has been unreasonably rejected.

Consideration

The offer was made at a time when the parties were well aware of all the facts; 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 Ning v McGrath (No 2)

Details

AGLC: Ning v McGrath (No 2) [2015] ACTSC 213
Case: [2015] ACTSC 213
Decision Date: 20 July 2015

CaseChat Overview and Summary

The appeal concerns a dispute between Ning and McGrath, with the case being heard in the Federal Court of Australia. The primary issue revolves around the assessment of costs in the context of a rejected Calderbank offer. Ning, the respondent, sought to recover costs incurred following the rejection of a Calderbank offer made by McGrath, the appellant. The court was tasked with determining whether the rejection of the Calderbank offer was unreasonable and, if so, whether it warranted an order for costs.

The legal issues addressed by the court included the principles governing Calderbank offers and the circumstances under which a rejection might be deemed unreasonable. The court considered whether the offer was genuine and whether it provided a reasonable basis for settlement. Furthermore, the court had to evaluate the conduct of both parties in relation to the offer and the subsequent proceedings. The court emphasised the importance of a Calderbank offer in encouraging settlement and its implications for costs orders.

The court concluded that the rejection of the Calderbank offer was unreasonable, taking into account the terms of the offer and the context in which it was made. It found that the offer was genuine and provided a reasonable basis for settlement. The court held that the rejection of such an offer could lead to an order for costs against the rejecting party. Given the unreasonable rejection, the court ruled in favour of Ning, ordering McGrath to pay a portion of the costs incurred by Ning following the rejection of the offer.

Orders

Orders of the court

See [14].

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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