Parish v Wu (No. 2) - [2010] VSC 64

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PERSONAL INJURIES LIST

No. 6200 of 2009

DAVID PARISH	Plaintiff
v
YIXUAN WU	Defendant

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JUDGE:	J. FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	8-12, 15-16 February 2010; written submissions filed 24 February 2010
DATE OF RULING:	12 March 2010
CASE MAY BE CITED AS:	Parish v Wu (No. 2)
MEDIUM NEUTRAL CITATION:	[2010] VSC 64

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COSTS – Plaintiff’s offer of compromise given during the running of the trial and accepted by the defendant – Rule 26.03 Supreme Court (General Civil Procedure) Rules 2005 – Whether plaintiff’s costs payable to date of offer or to date of acceptance – Exercise of discretion.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T. Casey QC with Mr A. Moulds	Burt & Davies
For the Defendant	Mr R.H. Gillies QC with Ms R. Annesley	Solicitor to the Transport Accident Commission

HIS HONOUR:

Introduction

On the afternoon of the fifth day of the trial, Friday 12 February 2010, the plaintiff, David Parish, served an offer of compromise on the defendant, Yixuan Wu, offering to settle his claim for $750,000 plus retention of benefits repayable pursuant to the Transport Accident Act 1986 (“the Act”).

On the afternoon of the seventh day of the trial, Tuesday 16 February 2010, Mr Wu accepted the offer.

Upon the jury being discharged without verdict, an issue arose as to the appropriate order for costs. It was not disputed that Mr Wu was liable to pay Mr Parish’s costs up to and including those incurred on 12 February, however, it was said on Mr Wu’s behalf that he should not be liable for costs after that date. Mr Parish contends that, once the offer had been served, Mr Wu had the option of accepting it at any time prior to verdict, however, he should meet the costs up to the date of acceptance.

I have determined that Mr Parish is entitled to his costs up to and including the day of Mr Wu’s acceptance of the offer of compromise.

Background

The trial commenced on Monday 8 February confined to one issue: the assessment of Mr Parish’s damages arising out of a transport accident on 21 August 2004.

Mr Parish and Mr Wu were each represented by experienced litigation solicitors and counsel. Mr Wu’s defence was conducted by the solicitor for the Transport Accident Commission (“the Commission”). It was common ground that the Commission indemnified Mr Wu in respect of any liability to Mr Parish, as required by the Act. It was not suggested that the Commission is anything other than a vastly experienced litigant with great corporate expertise in the handling and defence of claims brought in relation to transport accident.

Mr Wu’s solicitors made two offers of compromise prior to trial, one of $460,000 plus costs plus retention of repayable benefits (paid by the Commission pursuant to the Act) on 1 July 2009, and a second of $690,000 plus costs plus retention of repayable…

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 Parish v Wu (No. 2)

Details

AGLC: Parish v Wu (No. 2) [2010] VSC 64
Case: [2010] VSC 64
Decision Date: 12 March 2010

CaseChat Overview and Summary

In the matter of Parish v Wu (No. 2), the plaintiff sought clarification and determination regarding the appropriate time frame for calculating costs under Rule 26.03 of the Supreme Court (General Civil Procedure) Rules 2005. The defendant had accepted the plaintiff's offer of compromise during the course of the trial, which raised the issue of whether the costs should be calculated from the date the offer was made or the date it was accepted. The dispute was heard in the Supreme Court of Victoria.

The central legal issue before the court was whether the acceptance of an offer of compromise during the trial warranted a different approach to the calculation of costs. The plaintiff argued that the costs should be calculated from the date of the offer, while the defendant contended that the calculation should commence from the date of acceptance. This required the court to interpret and apply Rule 26.03, which provides that if a party accepts an offer of compromise made during the course of the trial, the court may order that costs are to be paid from the date of the offer. The court was tasked with determining the precise meaning of this provision and its application to the circumstances of this case.

The court found that Rule 26.03 clearly indicated that costs should be calculated from the date of the offer, not the date of acceptance. The court exercised its discretion in accordance with the rule, noting that the intent of the rule was to encourage parties to settle during the trial and to avoid unnecessary prolongation of litigation. The court emphasised the importance of the timing of the offer and acceptance in determining the appropriate time frame for calculating costs. Ultimately, the court decided in favour of the plaintiff, ordering that the costs be calculated from the date the offer of compromise was made.

The final orders of the court mandated that the costs of the plaintiff be calculated from the date of the offer of compromise, as per Rule 26.03 of the Supreme Court (General Civil Procedure) Rules 2005. The defendant was directed to pay the plaintiff's costs from that date, reflecting the court's interpretation and application of the rule.

Orders