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Re Mandie; Mandie v Danos

Re Mandie; Mandie v Danos

Case [2015] VSC 55 10 March 2015

Costs

Limitation Periods

Rejection of Settlement Offer

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROBATE LIST

S CI 2012 05769

IN THE MATTER of Part IV of the Administration and Probate Act 1958

- and -

IN THE MATTER of the will and estate of DAVID MANDIE, deceased

IAN ROBERT MANDIE and STEPHEN WAYNE MANDIE	Plaintiff
v
EVELYN DANOS and others (in their capacity as executor of the will of DAVID MANDIE, deceased)	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	Not applicable – on the papers
DATE OF JUDGMENT:	10 March 2015
CASE MAY BE CITED AS:	Re Mandie; Mandie v Danos
MEDIUM NEUTRAL CITATION:	[2015] VSC 55

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COSTS — Application by plaintiffs for leave to discontinue Part IV proceedings —Application not opposed by defendants — Defendants seek costs of the proceeding on an indemnity basis — Whether defendants’ costs should be on a standard or indemnity basis — Ugly TribeCo Pty Ltd v Sikola [2001] VSC 189 — Sidameneo (No 456) Pty Ltd v Ward & Magarey [2011] VSC 559

CALDERBANK OFFER — Rejection by plaintiffs of defendants’ offer to settle proceeding — Whether rejection was unreasonable in the circumstances — Supreme Court (General Civil Procedure) Rules 2005, r 26.08(4)(b) — Hazeldene’s Chicken Farm Pty Ltd (A.C.N 004 381 346) v Victorian Workcover Authority (No. 2) [2005] VSCA 298

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A P Young	Cornwall Stodart
For the Defendant	Mr J Ruskin QC	Allens
Mr P D Herzfeld

HER HONOUR:

Introduction

On 12 October 2012, the plaintiffs, who are the adult sons of the deceased, aged 66 and 59 years, filed a proceeding seeking further provision from the residuary estate of their late father (‘the deceased’).[1] The plaintiffs each sought one third of the residuary estate of the deceased, valued at approximately $35 million at the date of death of the deceased.
[1]Pursuant to Part IV of the Administration and Probate Act 1958 (‘the Act’).

The trial of the proceeding was to commence on 4 February 2015, with an estimate of four weeks.

On 18 December 2014, the Court listed the proceeding for pre-trial directions with the plaintiffs and defendants being required to provide the Court with further information designed to narrow the issues in contention and manage a four week trial: matters such as providing a list of objections to the other sides’ affidavits, providing a list of witnesses, and in consultation with each other, providing estimates of the time required for evidence in chief and cross examination and providing a timetable for the trial for opening and closing submissions and the calling of witnesses.

At the commencement of the directions hearing, counsel for the plaintiffs indicated the plaintiffs’ intention to seek leave of the Court to discontinue the proceeding.[2]
[2]Pursuant Supreme Court (General Civil Procedure) Rules 2005 (‘the Rules’), r 25.03.

The plaintiffs accept that in such circumstances they should pay the defendants’ costs of the proceeding to the time of discontinuance.

The defendants do not…

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 Re Mandie; Mandie v Danos

Details

AGLC: Re Mandie; Mandie v Danos [2015] VSC 55
Case: [2015] VSC 55
Decision Date: 10 March 2015

CaseChat Overview and Summary

In the case of Re Mandie; Mandie v Danos, the plaintiffs sought leave to discontinue their proceedings under Part IV of the Fair Work Act 2009. The defendants, who were not opposed to the discontinuance, sought costs of the proceeding on an indemnity basis. The court was tasked with determining whether the defendants' costs should be assessed on a standard or indemnity basis. The court considered relevant authorities, including Ugly Tribe Co Pty Ltd v Sikola and Sidameneo (No 456) Pty Ltd v Ward & Magarey, to guide its decision.

The legal issues before the court were whether the defendants were entitled to indemnity costs and if the plaintiffs' rejection of a settlement offer was unreasonable under the Supreme Court (General Civil Procedure) Rules 2005. The court examined the Calderbank offer, made by the defendants, and the circumstances surrounding its rejection by the plaintiffs. The court also referred to the case of Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No. 2) to assess the reasonableness of the plaintiffs' decision to reject the settlement offer.

The court found that the defendants were entitled to indemnity costs due to the plaintiffs' unreasonable rejection of the settlement offer. The court considered the nature of the proceedings, the timing of the offer, and the prospects of success at the trial. The court concluded that the plaintiffs' rejection of the offer was unreasonable given the circumstances and the likelihood of the defendants being awarded indemnity costs. The court also noted the importance of encouraging settlements and the potential deterrent effect of awarding indemnity costs in such cases.

The court ordered that the defendants be awarded their costs of the proceeding on an indemnity basis. The court emphasised the need for parties to consider settlement offers carefully and the consequences of unreasonable rejections. This decision reinforces the importance of the Calderbank offer and the court's power to award indemnity costs in appropriate circumstances.

Orders