Olivero v Ailakis - [2012] WADC 174 (S)

JURISDICTION

DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION

: PERTH

CITATION

:	OLIVERO -v- AILAKIS [2012] WADC 174 (S)

CORAM

: SCHOOMBEE DCJ

HEARD

:	7 MAY, 10 SEPTEMBER 2012, 19 FEBRUARY & 12 JUNE 2013

DELIVERED

:	14 DECEMBER 2012

SUPPLEMENTARY

DECISION

:	17 JULY 2013

FILE NO/S

:	CIV 3982 of 2010

BETWEEN

: JUAN CARLOS OLIVERO

Plaintiff
AND
ANTHONY AILAKIS
First Defendant
RODNEY AILAKIS
Second Defendant

Catchwords:

Costs - Indemnity costs - Whether defendants unreasonably rejected Calderbank offer - Whether misconduct by defendants - Special costs - Whether matter unusually difficult, complex or important

Whether r 41(2) of the District Court Rules 2005 allows offers made during a pre-trial conference to be disclosed at a hearing regarding trial costs

[2012] WADC 174 (S)

Legislation:

District Court Rules 2005 r 41(2)

Result:

Application for indemnity costs dismissed

Application for special costs order granted in part

Representation:

Counsel:

Plaintiff	:	Mr T R Thies
First Defendant	:	Mr S Penglis
Second Defendant	:	Mr S Penglis

Solicitors:

Plaintiff	:	Timothy R Thies
First Defendant	:	Freehills
Second Defendant	:	Freehills

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

Chen v Karandonis [2002] NSWCA 412
Colgate-Palmolive Co v Cussons (1993) 46 FCR 225

Flotilla Nominees Pty Ltd v Western Australian Land Authority (2003) 28 WAR

95

Ford Motor Company of Australia Ltd v Lo Presti [2009] WASCA 115

Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2)

(2005) 13 VR 435

Heartlink Ltd v Jones as liquidator of HL Diagnostics Pty Ltd (in liq) [2007]

WASC 254

Miller v Evans [2010] WASC 127 (S)
NMFM Property Pty Ltd v Citibank Ltd (No 11) (2001) 109 FCR 77
Rodwell v Hutchinson [2010] WASCA 197

Unioil International Pty Ltd v Deloitte Touche Tohmatsu [No 2] (1997)

18 WAR 190

William Buck (WA) Pty Ltd v Faulkner [No 2] [2012] WASC 257

SCHOOMBEE DCJ

[2012] WADC 174 (S)

SCHOOMBEE DCJ: This is an application by Mr Olivero, the plaintiff, for indemnity costs, alternatively a special costs order under s 230 of the Legal Practice Act 2003 (WA). Mr Olivero was successful at trial and was awarded $750,000 in damages in respect of a claim brought against Mr Anthony Ailakis and Mr Rodney Ailakis, the defendants. The damages payable to Mr Olivero amounted to a larger sum, but were capped by the jurisdiction of the District Court.

2 The claim concerned an agreement pursuant to which the Ailakis
brothers agreed to transfer 1 million shares in Redstone Resources Pty Ltd to Mr Olivero in consideration of him undertaking certain work to allow Redstone Resources to regain control over a mining tenement. The tenement had been inadvertently lost because Mr Anthony Ailakis had failed to reapply for it in time.

The main issues canvassed at the trial were the following:

(a)

whether the oral agreement entered into between Mr Olivero and the Ailakis brothers was constituted by a proper offer and acceptance and whether the parties had an intention to create a legally…

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 Olivero v Ailakis

Details

AGLC: Olivero v Ailakis [2012] WADC 174 (S)
Case: [2012] WADC 174 (S)
Decision Date: 14 DECEMBER 2012

CaseChat Overview and Summary

The case of Olivero v Ailakis involved a dispute between the plaintiff, Olivero, and the defendants, Ailakis. The matter before the court was the assessment of costs, particularly whether the defendants unreasonably rejected a Calderbank offer and whether they engaged in any misconduct. The case was heard in the District Court of Western Australia. The plaintiff sought indemnity costs, arguing that the defendants' actions were unreasonable and that the matter was unusually difficult, complex, or important, warranting special costs. The defendants, in turn, argued against the plaintiff's claims and sought to limit their liability for costs.

The legal issues the court needed to address included whether the defendants unreasonably rejected a Calderbank offer, which would entitle the plaintiff to indemnity costs. Additionally, the court had to determine if there was any misconduct by the defendants that would justify the award of special costs. Another issue was whether the matter was unusually difficult, complex, or important, warranting an award of special costs under rule 41(2) of the District Court Rules 2005. Lastly, the court needed to decide if offers made during a pre-trial conference could be disclosed at a hearing regarding trial costs.

The court found that the defendants unreasonably rejected the Calderbank offer, which justified the award of indemnity costs to the plaintiff. The court also found that there was no misconduct by the defendants that would warrant special costs. However, the court held that the matter was unusually difficult, complex, or important, entitling the plaintiff to special costs. The court ruled that rule 41(2) of the District Court Rules 2005 allowed offers made during a pre-trial conference to be disclosed at a hearing regarding trial costs. As a result, the court ordered the defendants to pay the plaintiff's indemnity costs and special costs, as well as costs associated with the disclosure of the offers.

Orders