| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
CORPORATIONS LIST
S CI 2013 01736
| IN THE MATTER OF AKRON ROADS PTY LTD (IN LIQUIDATION) | |
| BETWEEN: | |
| ROSS BLAKELEY (IN HIS CAPACITY AS JOINT AND SEVERAL LIQUIDATOR OF AKRON ROADS PTY LTD (IN LIQUIDATION)) & ORS | Plaintiffs |
| v | |
| CGU INSURANCE LIMITED | Fifth defendant |
| & ORS | Defendants |
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JUDGE: | Robson J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7 December 2016 |
DATE OF JUDGMENT: | 7 December 2016 |
CASE MAY BE CITED AS: | Re Akron Roads Pty Ltd (in liquidation) (No 4) |
MEDIUM NEUTRAL CITATION: | [2016] VSC 778 |
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COSTS – Grounds for departing from a usual order that costs be taxed on a standard basis - Whether an award for indemnity costs are appropriate – Calderbank offer made – Principles for assessing relevance of Calderbank offer – Offer was merely an offer to capitulate – Relevance of parties’ concessions to award of costs – Apportion of costs where successful party lost several discrete questions.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Dr O Bigos | King & Wood Mallesons |
| For the Fifth Defendant | Ms R L Enbom | Norton Rose Fulbright |
HIS HONOUR:
I have before me the issue of how costs should be awarded following my decision in this matter, which is recorded in Re Akron Roads Pty Ltd (in liquidation) (No 3).[1] The parties to the issues before me are CGU Insurance Limited (the fifth defendant) the liquidators of Akron Roads Pty Ltd (the first plaintiffs), and the company itself (the second plaintiff). I will refer to the first and second plaintiffs as the plaintiffs or Akron.
[1][2016] VSC 657.
Akron failed in its claim against CGU. CGU seeks the following orders:
(1)the plaintiff’s claim against the fourth defendant (Crewe Sharp Pty Ltd (Crewe Sharp)) is dismissed;
(2)the plaintiff’s application for a declaration against the fifth defendant (CGU) is dismissed; and
(3)The first plaintiffs pay:
(a) CGU’s costs occasioned by, or referable to, paragraphs 27 to 30 of the fourth further amended points of claim, abandoned on 23 March 2016 to be taxed on an indemnity basis. Those paragraphs contained a further alternative claim relying on the 2012/2013 policy issued by CGU to Crewe Sharp; and
(b)CGU’s costs otherwise of and incidental to the proceedings, including all reserved costs, to be paid by Akron on a standard basis up to 3 March 2016 and thereafter on an indemnity basis.
Proposed orders (1) and (2) above are not disputed by counsel for Akron.
Akron submits that the appropriate order for costs is that Akron pay CGU’s costs of the proceeding on a standard basis, to be taxed in default of agreement. Akron submits that the costs should be discounted to the extent that the court deems appropriate in light of the matters set out in paragraph 2(h) of their written submissions and the separate questions raised by CGU in its defence on which it failed and the issues raised by Akron on which it won.
Those matters are,…
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- AGLC
- Re Akron Roads Pty Ltd [2016] VSC 778
- Case
- [2016] VSC 778
- Decision Date
CaseChat Overview and Summary
The primary legal issue was whether the offer made by Akron Roads Pty Ltd constituted a genuine attempt to settle the matter, thus warranting a departure from the usual practice of taxing costs on a standard basis. The court examined the principles surrounding Calderbank offers and their relevance to the assessment of costs. The court also considered the concessions made by the parties during the proceedings and whether these concessions influenced the award of costs. Furthermore, the court had to apportion costs where the successful party had lost several discrete questions during the proceedings.
The court found that the Calderbank offer made by Akron Roads Pty Ltd was not a genuine offer to settle but rather an offer to capitulate. The court emphasized the importance of the timing and substance of the offer in determining its relevance. The court also highlighted the significance of the parties' concessions in the context of costs assessment. In light of these findings, the court decided that it was appropriate to depart from the usual order that costs be taxed on a standard basis. The court awarded indemnity costs to the successful party, while also considering the unsuccessful party's losses on several discrete issues. The court apportioned the costs to reflect the overall success of the applicant, despite the losses on specific points.
The court ordered that Akron Roads Pty Ltd pay the costs of the proceeding on an indemnity basis, subject to a set-off for the unsuccessful party's losses on several discrete questions. This decision underscores the importance of the nature and timing of settlement offers, as well as the concessions made by the parties, in determining the appropriate allocation of costs in litigation.
Orders
Orders of the court
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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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