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Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd

Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd

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Case Copied 27 May 2005 23 min read

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CITATION:
Rickard Constructions v Rickard Hails Moretti & Ors [2005] NSWSC 481

HEARING DATE(S): 7 April 2005

JUDGMENT DATE :

27 May 2005

JURISDICTION:
Technology & Construction List

JUDGMENT OF:
McDougall J at 1

DECISION:
See paras [51] and [52] of judgment

CATCHWORDS:
COSTS - application for indemnity costs - where third defendant sent Calderbank letter and made separate offer of compromise prior to trial - whether Calderbank offer was reasonable - whether rejection of offer was unreasonable - where reasonableness determined objectively - no question of principle

LEGISLATION CITED:
Supreme Court Rules Pt 22, Pt 52A, r 22

CASES CITED:
Calderbank v Calderbank [1976] Fam 93
GIO General Ltd v ABB Installation and Service Pty Ltd [2000] NSWCA 118
Jones v Bradley (No 2) [2003] NSWCA 258
Leichhardt Municipal Council v Green [2004] NSWCA 341
Oshlack v Richmond River Council (1998) 193 CLR 72
SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323

PARTIES:
Rickard Constructions Pty Limited (Plaintiff)
Rickard Hails Moretti Pty Limited (First Defendant)
Jeffery & Katauskas Pty Limited (Second Defendant)
Allianz Australia Insurance Limited (Third Defendant)

FILE NUMBER(S):
SC 55027/00

COUNSEL:
F C Corsaro SC/T G R Parker (Plaintiff)
S R Donaldson SC/P S Braham (First Defendant)
M Dempsey SC/J Steele (Second Defendant)
A S Martin SC/A J McInerney (Third Defendant)

SOLICITORS:
Maurice Blackburn Cashman (Plaintiff)
Moray & Agnew (First Defendant)
Colin Biggers & Paisley (Second Defendant)
Moroney Betts (Third Defendant)

LOWER COURT JURISDICTION:

Index

Judgment on Third Defendant’s Application for Indemnity Costs

Para

Events leading up to the application 3

Relevant principles 11

The parties’ submissions 18

Analysis 27

Conclusion 50

Order 51

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
TECHNOLOGY AND CONSTRUCTION LIST

McDOUGALL J

27 May 2005

RICKARD HAILS MORETTI PTY LTD & ORS

JUDGMENT - ON THIRD DEFENDANT’S APPLICATION FOR INDEMNITY COSTS

1 HIS HONOUR: I gave judgment in these proceedings on 17 December 2004, in which I found for each of the defendants on the plaintiff’s claim. I made orders on 7 April 2005 to reflect my conclusions. Among other things, I ordered the plaintiff (Rickard Constructions) to pay the costs of the third defendant (Allianz).

2 Allianz sought an order that its costs be paid on an indemnity basis from 13 March 2003 and on a party and party basis prior to that date. I reserved that question for further argument, and directed Rickard Constructions and Allianz to put in written submissions. They agreed that I could decide the claim for indemnity costs upon the basis of those written submissions. This I now do.

Events leading up to the application

3 On 3 February 2003, an order was made by consent that Rickard Constructions pay into Court as security $50,000. That was done on 28 February 2004.

4 It appears that there was a mediation on 3 March 2003. That mediation did not lead to a settlement.

5 On 13 March 2003, Allianz made an offer to Rickard Constructions to compromise the claim…

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: [2005] NSWSC 481
Decision Date: 27 May 2005

CaseChat Overview and Summary

In the case of Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd, the parties were engaged in a dispute over indemnity costs, with Rickard Constructions seeking costs against Rickard Hails Moretti. The case was heard in the Supreme Court of New South Wales. The third defendant had previously sent a Calderbank letter and made a separate offer of compromise before the trial, which Rickard Constructions had rejected. The court was required to determine whether the Calderbank offer was reasonable and whether Rickard Constructions' rejection of the offer was unreasonable. The reasonableness of the offer was to be determined objectively, without any question of principle.

The court considered the principles governing indemnity costs and the application of the Calderbank principle. The court acknowledged that the Calderbank offer was an attempt to settle the dispute and avoid the costs and risks associated with litigation. The court emphasised that the reasonableness of the offer was to be assessed objectively, based on the information available at the time of the offer, and without regard to the outcome of the litigation. The court also noted that the rejection of a Calderbank offer could potentially lead to an order for indemnity costs if the rejection was found to be unreasonable.

After carefully considering the evidence and the arguments presented by both parties, the court found that the Calderbank offer was reasonable. The court also determined that Rickard Constructions' rejection of the offer was not unreasonable, given the circumstances of the case. Consequently, the court dismissed the application for indemnity costs. The court emphasised that the decision was based on the specific facts and circumstances of the case, and did not establish a new principle of law.

Orders