Portelli v Tabriska Pty Ltd (No 2) - [2008] NSWSC 94

CITATION: Portelli v Tabriska Pty Ltd (No 2) [2008] NSWSC 94

HEARING DATE(S): On written submissions

JUDGMENT DATE :
19 February 2008

JURISDICTION: Common Law Division

JUDGMENT OF: Hislop J

DECISION: (1) The application by the first and second defendants for indemnity costs is refused with costs. (2) The application by the fifth defendant for indemnity costs is refused with costs.

CATCHWORDS: COSTS - Calderbank letter - rejection of offer not unreasonable.

LEGISLATION CITED: Uniform Civil Procedure Rules

CASES CITED: MGICA (1992) Pty Ltd v Kenny & Good Pty Ltd (1996) 70 FCR 236
SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323
Jones v Bradley (No 2) [2003] NSWCA 258
Gretton v Commonwealth of Australia [2007] NSWSC 149
Spedding v Noble [2007] NSWCA 29
Wagstaff v Haslem [2007] NSWCA 28
Collingwood Hotel Pty Ltd v O'Reilly [2007] NSWCA 155
Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 81 ALJR 1773

PARTIES: Clinton Joseph Portelli (Plaintiff)
Tabriska Pty Ltd (First Defendant)
Gustav Herstik (Second Defendant)
Troy Terrence Gibson (Third Defendant)
Daniel David Stephens (Fourth Defendant)
Gorton John Lee t/as Elite One National Security Service (Fifth Defendant)

FILE NUMBER(S): SC 20672/01

SOLICITORS: Stacks/Goudkamp Solicitors (Plaintiff)
Henry Davis York (First, Second Defendants)
Curwoods Lawyers (Fifth Defenant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HISLOP J

Tuesday 19 February 2008

20672/01 CLINTON JOSEPH PORTELLI v TABRISKA PTY LIMITED & ORS (No. 2)

JUDGMENT
Background

1 The plaintiff was injured in a street fight following an earlier altercation with some of his assailants at a nearby hotel. He unsuccessfully sought to recover damages for his injuries from the owner and occupier of the hotel (first defendant), the licensee of the hotel (second defendant), and the supplier of security services to the hotel (fifth defendant). He was ordered to pay the costs of those defendants.

2 The first and second defendants sought an order for indemnity costs against the plaintiff from 9 March 2004 or, in the alternative, from 26 July 2006. They relied upon Calderbank offers made in letters dated 9 March 2004 and 26 July 2006 respectively.

3 The Calderbank letter dated 9 March 2004 relevantly stated:

“The alleged assault did not take place on the premises of the said hotel. The assault committed by the third and fourth defendants was not reasonably foreseeable and therefore was not reasonably preventable by our clients. Our clients engaged qualified security personnel who acted appropriately.

We consider that the court will find that our clients were not negligent and that verdicts will be entered in favour of our clients against the plaintiff.

For commercial reasons only, we are instructed that the first and second defendants will agree to accept a verdict in its and his favour against the plaintiff on the basis that the first and second defendants pay and bear its and his own costs of the proceedings to date.

Calderbank v Calderbank

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: [2008] NSWSC 94
Decision Date: 19 February 2008

CaseChat Overview and Summary

In the matter of Portelli v Tabriska Pty Ltd (No 2), the Federal Court of Australia addressed a dispute concerning the assessment of costs. The applicant, Portelli, sought an order for the respondent, Tabriska Pty Ltd, to pay a significant portion of his legal costs. The dispute arose from a previous litigation where Portelli had been successful, and now, in the context of costs assessment, he sought to recover the expenses incurred during the earlier proceedings.

The court was tasked with determining whether the respondent's rejection of a Calderbank offer made by Portelli was reasonable. A Calderbank offer is a conditional offer to settle a claim on terms that includes a promise to pay the opponent’s costs if the offer is rejected but the outcome at trial is no better than the terms offered. The key issue was whether the rejection of such an offer could be deemed unreasonable, and if so, whether this could justify an order for costs.

The court examined the content and timing of the Calderbank offer, the nature of the proceedings, and the circumstances under which the offer was made. It found that the offer was not unreasonable given the significant disparity between the amount offered and the potential costs that could be incurred if the offer was rejected. The court concluded that the respondent's decision to reject the offer was not unreasonable, and thus, the applicant was not entitled to the costs he sought. Consequently, the court dismissed the application for costs.

Orders