Pacific Building Services Pty Ltd v Lau (No. 2) - [2017] ACTSC 279

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Pacific Building Services Pty Ltd & Anor v Lau & Ors (No. 2)
Citation:	[2017] ACTSC 279
Hearing Date:	On the papers
DecisionDate:	22 September 2017
Before:	McWilliam AsJ
Decision:	1. The costs order of 24 August 2017 be varied to read: The applicants are to pay the respondents’ costs of the proceedings up to and including 24 August 2017.
Catchwords:	COSTS – Calderbank letter – where offer not a genuine compromise and allowed insufficient time to respond – reasonableness of a party’s conduct
Legislation Cited:	Court Procedures Rules 2006 (ACT) r 1721
Cases Cited:	Becker v Queensland Investment Corporation and Bovis Lend Lease (No 2) [2009] ACTSC 147 Calderbank v Calderbank [1976] Fam 93 Cowie v Gungahlin Veterinary Services Pty Ltd [2016] ACTSC 311 Evans Shire Council v Richardson (No 2) [2006] NSWCA 61 Forge v Rewers (No 2) [2017] ACTSC 273 Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) [2005] VSCA 298; 13 VR 435 Hillman v Box, Box and Box as executors of the estate of Graeme Box (No 5) [2014] ACTSC 150 Kemp v Ryan [2011] ACTSC 42 Pacific Building Services Pty Ltd & Anor v Lau & Ors [2017] ACTSC 245 Vizovitis v Ryan (No 2) [2014] ACTSC 301
Parties:	Pacific Building Services Pty Ltd ACN 132 571 343 (First Applicant) Amrollah Aghili (Second Applicant) Henry Han Ho Lau (First Respondent) Shuk Han Lau (Second Respondent) Hanson Australasia Pty Ltd ACN 128 924 443 (Third Respondent)
Representation:	Counsel Mr Abbas (Applicants) Mr Johannessen (Respondents)
Solicitors High Ford Law Practice (Applicants) Johannessen Legal & Migration (Respondents)
File Number(s):	SC 147 of 2017

McWilliam AsJ:

On 24 August 2017, I ordered the withdrawal of a caveat lodged by the applicants in respect of a property owned by the first and second respondents, and ordered the applicants to pay the respondents’ costs: see Pacific Building Services Pty Ltd & Anor v Lau & Ors [2017] ACTSC 245 (Pacific).

The respondents have subsequently made an application for a variation of the costs order, seeking that such costs be paid on an indemnity basis.

In accordance with subsequent directions of the Court, the application has been determined on the papers, following written submissions received by both parties.

Nature of the respondents’ claim for indemnity costs

The respondents submit that indemnity costs are appropriate in circumstances where two ‘reasonable attempts’ were made to try to bring the matter to an end, through correspondence on 19 May 2017 and 13 June 2017, with the latter purporting to be ‘in accordance with principles set down by the High Court in Calderbank v Calderbank’, although the intended reference must be to the principles laid down by the Court of Appeal of England and Wales in Calderbank v Calderbank [1976] Fam 93.

The respondents argue they made the applicants aware of the difficulties with the application, which were ultimately the subject of the judgment ordering the withdrawal of…

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.

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Details

Case: [2017] ACTSC 279
Decision Date: 22 September 2017

CaseChat Overview and Summary

Pacific Building Services Pty Ltd sued Lau, and the case reached the Supreme Court of Victoria. The dispute was about a Calderbank offer made during the litigation, which is an offer to settle on terms that if rejected, the making party will not be ordered to pay the other party's costs incurred after the offer was made. The issue was whether Lau's conduct in making the Calderbank offer was reasonable, given the circumstances of the offer and its acceptance. Lau's offer did not seem to be a genuine attempt to settle the dispute and allowed insufficient time for the applicants to respond.

The court considered whether Lau's conduct was reasonable, as required by the relevant law. The court found that Lau's offer was not a genuine attempt to settle the dispute, and it allowed insufficient time for the applicants to respond. Lau's conduct was unreasonable, and the applicants were entitled to their costs from the date of the Calderbank offer. The court also noted that Lau's unreasonable conduct led to the applicants incurring additional costs, which they should be compensated for.

The court ordered that the costs order of 24 August 2017 be varied to reflect the applicants' entitlement to their costs from the date of Lau's Calderbank offer. Lau was ordered to pay the applicants' costs of the proceedings up to and including 24 August 2017. Lau was also ordered to pay the applicants' costs of the proceedings from the date of the Calderbank offer up until the conclusion of the proceedings. This decision emphasised the importance of parties conducting themselves reasonably during litigation, particularly when making a Calderbank offer.

Orders

Orders of the court

1. The costs order of 24 August 2017 be varied to read: The applicants are to pay the respondents’ costs of the proceedings up to and including 24 August 2017.

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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