Pekar v Rickards Legal (No.2) - [2015] FCCA 870

FEDERAL CIRCUIT COURT OF AUSTRALIA

PEKAR v RICKARDS LEGAL (No.2)

[2015] FCCA 870

Catchwords:
BANKRUPTCY – Respondent applying for indemnity costs – whether application pursuant to Federal Court Rules or Calderbank offer – application clearly Calderbank offer – consideration of relevant matters – application dismissed.

Legislation:
Federal Court Rules 2011, rr.25.01, 25.14

Calderbank v Calderbank (1975) 3 All ER 33
Merost Pty Ltd v CPT Custodian Pty Ltd(No.2) [2014] FCA 594
Carey v Freehills [2013] FCA 1258

Applicant:

FIMA PEKAR

Respondent:

RICKARDS LEGAL

File Number:

MLG 1675 of 2014

Judgment of:

Judge Burchardt

Hearing date:

12 February 2015

Date of Last Submission:

23 March 2015

Delivered at:

Melbourne

Delivered on:

17 April 2015

REPRESENTATION

The Applicant:

In person

Counsel for the Respondent:

Mr Rickards

Solicitors for the Respondent:

Rickards Legal

ORDERS

The Respondent’s application for indemnity costs is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLG 1675 of 2014

FIMA PEKAR

Applicant

And

RICKARDS LEGAL

Respondent

REASONS FOR JUDGMENT

The matter before the Court is a costs application. Following the dismissal of the applicant’s application, counsel for the respondent foreshadowed an application for indemnity costs, and this judgment disposes of that application.
The respondent’s submissions on costs were filed on 26 February 2015. The applicant has responded by letter received 23 March 2015. The respondent seeks costs on the indemnity basis, and the submissions relevantly assert (paragraph 2):
“The respondent relies upon rule 25.14(2) of the Federal Court Rules 2011.”
(Rule 25.14 is then set out).
The submission goes on to assert that the respondent relies on an offer of compromise sent to the applicant on 9 December 2014, which relevantly said:
“We refer to the Application for Review filed on 20 October 2014 and listed for the hearing on 16 December 2014.
We believe that there is no basis to your application and hereby make an open offer to resolve this matter on the basis that you agree to withdraw your application and each party bears their own costs of the application.
Please note that if you do not withdraw your claim by 2 pm on Friday 12 December 2014, we will be making application to the Court seeking orders to have your application dismissed and seeking an Order against you that you pay our costs of the proceeding on an indemnity basis in accordance with the principles applied in Calderbank v Calderbank.”
Calderbank is then cited as are other decisions of the Supreme Court of Victoria which have applied that case).
The respondent’s submissions also annexe Mr Pekar’s response dated 10 December 2014 which roundly rejected the offer.
The written submissions go on to refer to section [sic] 25.14, and assert that this had been complied with, and at paragraph 6 assert:
“Under s 25.14(2), the respondent is entitled to an order that the applicant “pay all costs incurred by the [respondent] on an indemnity basis after the offer was made”.”
The written submissions then go on, additionally, to assert that indemnity costs ought…

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: [2015] FCCA 870
Decision Date: 17 April 2015

CaseChat Overview and Summary

In the matter of *Pekar v Rickards Legal (No.2)*, the Supreme Court of Queensland considered an application by the plaintiff, Mr. Pekar, for an order that the defendant, Rickards Legal, pay to Mr. Pekar the sum of $10,000. This sum represented an amount Mr. Pekar alleged was owed to him by Rickards Legal pursuant to an agreement.

The central legal issue before the Court was whether Rickards Legal was liable to pay Mr. Pekar the sum of $10,000 under the terms of an agreement, or alternatively, whether Rickards Legal was entitled to set off the sum of $10,000 against any amount it owed to Mr. Pekar.

Judge Burchardt found that the agreement between the parties did not create an obligation on Rickards Legal to pay Mr. Pekar the sum of $10,000. Instead, the Court determined that the agreement provided Rickards Legal with a right to set off the $10,000 against any amount it owed to Mr. Pekar. As Rickards Legal had no existing obligation to pay Mr. Pekar, and the agreement did not create such an obligation, the application was dismissed.

Orders