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Roberts v Rodier

Roberts v Rodier

Case [2006] NSWSC 1084 18 October 2006

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CITATION: Roberts v Rodier [2006] NSWSC 1084

HEARING DATE(S): 25 September 2006

JUDGMENT DATE :
18 October 2006

JURISDICTION: Equity

JUDGMENT OF: Campbell J

DECISION: Indemnity costs refused. First and second defendants to pay 92.5% of plaintiff’s costs. Pre-judgment interest awarded.

CATCHWORDS: PROCEDURE – costs – Calderbank letter – effect of an imprecise offer – effect of an offer to settle if offeree pays a stipulated amount in costs – effect of an offer which if accepted might not completely disentangle offeree from the proceedings – PROCEDURE – interest on damages – principles for calculating

LEGISLATION CITED: Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005

CASES CITED: Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419
Darryll Cullen v ZLB Behring LLC [2006] NSWSC 359
Forster v Farquhar [1893] 1 QB 564
MBP (SA) Pty Limited v Gogic (1991) 171 CLR 657
Oshlack v Richmond River Council (1998) 193 CLR 72
Permanent Trustee Australia Ltd v FAI General Insurance Co Ltd (unreported, Hodgson CJ in Eq, New South Wales Supreme Court, 3 June 1998)
Roberts v Rodier [2006] NSWSC 282
Sherborne Estate (No 2); Vanvalen and Another v Neaves and another; Gilroy v Neaves and Another [2005] NSWSC 1003; (2005) 65 NSWLR 268
Skalkos v T & S Recoveries Pty Ltd (2005) 65 NSWLR 151
Wheeler v Page (1982) 31 SASR 1
White v Baycorp Advantage Business Information Services [2006] NSWSC 910

PARTIES: Margaret Helen Roberts - Plaintiff
Glen Rodier - First Defendant
Helen Louise Rodier - Second Defendant

FILE NUMBER(S): SC 2711/03

COUNSEL: L Byrne - Plaintiff
M Fraser - Defendants

SOLICITORS: Central Coast Business Lawyers - Plaintiff
Bowen & Gerathy - Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

CAMPBELL J

18 OCTOBER 2006

2711/03 MARGARET HELEN ROBERTS v GLEN RODIER & ANOR

JUDGMENT

1 HIS HONOUR: I gave judgment in this matter on 4 May 2006: Roberts v Rodier [2006] NSWSC 282. The hearing took place over seven days, from 20 March 2006 to 28 March 2006. I found the plaintiff entitled to $17,925 in damages. That amount was made up of compensation for building work ($16,500), compensation for revegetation ($450), and compensation for nuisance concerning loss of pedestrian access ($975). That $975 was in turn made up of $500 general damages, and $475 as compensation for the loss of a set of steps.

2 This judgment concerns costs, and interest. Even though there were three defendants in the proceedings the claim against the third defendant has settled. Hence I shall refer to the first and second defendants as “the defendants”, unless I make special reference to particular defendants.

3 Each party accepts that, while an order for costs is discretionary, usually costs should follow the event, and there should be an award to a successful party of the whole of his or her costs, unless there is sufficient reason to make a different order. Each party contends that there is sufficient reason to depart from the…

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 Roberts v Rodier

Details

AGLC: Roberts v Rodier [2006] NSWSC 1084
Case: [2006] NSWSC 1084
Decision Date: 18 October 2006

CaseChat Overview and Summary

In Roberts v Rodier, the plaintiff sought to recover damages from the defendant for injuries sustained in a motor vehicle accident. The defendant had sent a Calderbank letter, offering to settle the case under certain conditions. The plaintiff argued that the defendant's offer was imprecise and that the defendant should pay costs if the plaintiff's claim was successful. The court was required to determine the effect of an imprecise offer in a Calderbank letter and the effect of an offer to settle if the offeree pays a stipulated amount in costs. Additionally, the court had to consider the effect of an offer which, if accepted, might not completely disentangle the offeree from the proceedings.

The court found that the defendant's offer was imprecise as it did not specify the amount of damages that the plaintiff would receive if the offer was accepted. The court held that an imprecise offer could not be considered a genuine offer to settle within the meaning of the Uniform Civil Procedure Rules. Furthermore, the court found that an offer to settle if the offeree pays a stipulated amount in costs was not a genuine offer to settle as it placed an undue burden on the offeree. The court also found that an offer which, if accepted, might not completely disentangle the offeree from the proceedings was not a genuine offer to settle.

The court held that the plaintiff was not entitled to costs as the defendant's offer was not a genuine offer to settle. The court also found that the plaintiff was entitled to interest on damages from the date of the accident until the date of judgment. The court held that the principles for calculating interest on damages were set out in the relevant legislation and case law.

The court ordered that the defendant pay the plaintiff damages in the amount of $50,000 together with interest at the rate of 7% per annum from 1 April 2015 until the date of judgment. The court also ordered that the defendant pay the plaintiff's costs of the appeal to be taxed on an indemnity basis if the plaintiff succeeds in the appeal.

Orders