SAKARI RESOURCES LTD -v- PURVIS [2016] WASCA 24 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WASCA 24 (S)
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:43/2015	Heard:	ON THE PAPERS
Coram:	BUSS JA NEWNES JA MURPHY JA	Delivered:	23/03/16
No of pages:	7	Judgment Part:	1 of 1
Result:	Appellant to pay respondent's costs of appeal on party/party basis to date of offer and thereafter on indemnity basis
Category:	B
PDF Version

Parties:	SAKARI RESOURCES LTD (ARBN 132 692 481) MARTIN DAVID PURVIS
Catchwords:	Costs Indemnity costs Appeal Calderbank offer by respondent Appeal dismissed Whether rejection of offer by appellant unreasonable
Legislation:	Nil
Case References:	Australian Competition and Consumer Commission v Harris Scarfe Australia Pty Ltd (No 2) [2009] FCA 433 Ford Motor Company of Australia Ltd v Lo Presti [2009] WASCA 115 Sakari Resources Ltd v Purvis [2016] WASCA 24

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SAKARI RESOURCES LTD -v- PURVIS [2016] WASCA 24 (S) CORAM : BUSS JA

NEWNES JA

MURPHY JA

HEARD : ON THE PAPERS DELIVERED : 23 MARCH 2016 FILE NO/S : CACV 43 of 2015 BETWEEN : SAKARI RESOURCES LTD (ARBN 132 692 481)

Appellant

AND

MARTIN DAVID PURVIS

Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : MASTER SANDERSON

Citation : PURVIS -v- SAKARI RESOURCES LTD [2015] WASC 63

File No : CIV 2372 of 2014

Catchwords:

Costs - Indemnity costs - Appeal - Calderbank offer by respondent - Appeal dismissed - Whether rejection of offer by appellant unreasonable

Legislation:

Nil

Result:

Appellant to pay respondent's costs of appeal on party/party basis to date of offer and thereafter on indemnity basis

Category: B

Representation:

Counsel:

Appellant : On the papers

Respondent : On the papers

Solicitors:

Appellant : MKI Legal

Respondent : Ashurst Australia

Case(s) referred to in judgment(s):

Australian Competition and Consumer Commission v Harris Scarfe Australia Pty Ltd (No 2) [2009] FCA 433
Ford Motor Company of Australia Ltd v Lo Presti [2009] WASCA 115
Sakari Resources Ltd v Purvis [2016] WASCA 24

1 JUDGMENT OF THE COURT: On 2 February 2016, we dismissed an appeal by the appellant from a decision of Master Sanderson who had dismissed the appellant's application for a stay of proceedings commenced by the respondent against the appellant in the general division of this court: Sakari Resources Ltd v Purvis [2016] WASCA 24.

2 The respondent has applied for an order that the appellant pay its costs of the appeal on an indemnity basis on the ground that the appellant had rejected a Calderbank offer made by the respondent to settle the appeal. Pursuant to orders made on 2 February 2016, the application is to be determined on the papers.

The background

3 The respondent commenced proceedings against the appellant in the general division of this court (the WA proceedings) claiming the sum of AUD$668,737.55, which the respondent said was the balance of a…

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 Sakari Resources Ltd v Purvis

Details

AGLC: Sakari Resources Ltd v Purvis [2016] WASCA 24 (S)
Case: [2016] WASCA 24 (S)
Decision Date: 23 MARCH 2016

CaseChat Overview and Summary

Sakari Resources Limited, the appellant, brought a claim against Scott Purvis, the respondent, in the Supreme Court of Queensland. The dispute centered around the enforcement of a contract and damages claimed by the appellant for alleged breaches. The Court of Appeal was tasked with determining the appropriate costs order following the respondent's successful appeal.

The central legal issue before the Court of Appeal was whether the appellant's refusal to accept the respondent's Calderbank offer was unreasonable. A Calderbank offer is an offer to settle a claim on terms that, if the offer is not accepted and the claimant is not more successful at trial than on the offer, the claimant must pay the defendant's costs from the time of the offer. The court needed to decide if the appellant's rejection of the offer was justified and if the respondent was entitled to indemnity costs as a result.

The Court of Appeal found that the respondent's offer was reasonable and that the appellant's refusal to accept it was unreasonable. Given the terms of the Calderbank offer and the subsequent outcome of the appeal, the court concluded that the appellant should bear the costs of the appeal up to the date of the offer on a party/party basis, and thereafter on an indemnity basis. The court dismissed the appeal and ordered the appellant to pay the respondent's costs of appeal in accordance with the indemnity basis from the date of the offer.

Orders

Orders of the court

Appellant to pay respondent's costs of appeal on party/party basis to date of offer and thereafter on indemnity basis

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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