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Scanruby Pty Ltd v Caltex Petroleum Pty Ltd

Scanruby Pty Ltd v Caltex Petroleum Pty Ltd

Case [2001] NSWSC 411 18 May 2001

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CITATION: Scanruby P/L v. Caltex Petroleum P/L and Anor [2001] NSWSC 411

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 2940/98

HEARING DATE(S): 18 May, 2001

JUDGMENT DATE:
18 May 2001

PARTIES :

Scanruby Pty Ltd [ACN 058 715 469] (Plaintiff)
Caltex Petroleum Pty Ltd [ACN 000 007 876] (First Defendant)
Caltex Australia Petroleum Pty Ltd [ACN 000 032 128] (Second Defendant)

JUDGMENT OF: Palmer J

COUNSEL : S. Coleman (Plaintiff)
Mark Doble (Sol) (First and Second Defendant)

SOLICITORS: Williams the Law Firm (Plaintiff)
Deacons (First & Second Defendants)

CATCHWORDS: PROCEDURE [103] - SUPREME COURT RULES concerning offer of compromise - plaintiff makes offer of compromise - withdraws offer after new evidence produced - no prior leave to withdraw obtained - defendants accept offer claiming withdrawal is invalid - plaintiff seeks leave to withdraw offer nunc pro tunc prior to the entry of judgment - whether leave to withdraw offer of compromise can be granted nunc pro tunc - SUPREME COURT RULES Pt.22 r.3

CASES CITED: Lewis v. Combell Constructions Pty Ltd (1989) 18 NSWLR 528
Young v. Combe (SCNSW 29 July 1993)

DECISION: Leave to the plaintiff nunc pro tunc to withdraw its offer of compromise effective on 26 April 2001; Defendants to pay the plaintiff's costs of the Notice of Motion.

1 The circumstances in which the hearing of this matter came to a conclusion are set out in a judgment delivered by me on 24 April 2001 and I shall not repeat them.

2 The trial of this matter was fixed to commence on 23 April 2001. On 18 April 2001 the plaintiff (“Scanruby”) delivered to the defendants (collectively, “Caltex”) an offer of compromise under Pt.22 r.3(1) of the Supreme Court Rules.

3 Pt.22 r.3(5) entitles Caltex to accept that offer by written acceptance within 28 days from 18 April, that is by 17 May 2001. Under Pt.22 r.3(6), an offer cannot be withdrawn during the time it is open to acceptance unless the Court otherwise orders.

4 The trial commenced on 23 April. On the second day of the trial Caltex produced three boxes of documents in response to a Notice to Produce. Scanruby sought an adjournment on the ground that the material had never been produced on discovery, although it was clearly discoverable. I granted that application for the reasons set out in my judgment of 24 April. Essentially I held that the only real issue of fact in the case was the verification of Caltex's accounts upon the basis of which Caltex claimed compensation for wrongful exclusion from the F3 site. The newly produced documents were relevant to that issue. They should have been produced on discovery.
5 On 26 April 2001 Scanruby's solicitors wrote to Caltex' solicitors withdrawing all offers of compromise. Scanruby did not apply for leave under Pt.22 r.3(6) to withdraw the offer made on 18 April on or prior to 26 April.

6 On 9 May 2001, within the 28 day period provided by Pt.22 r.3(5), Caltex's solicitors accepted Scanruby's offer of…

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 Scanruby Pty Ltd v Caltex Petroleum Pty Ltd

Details

AGLC: Scanruby Pty Ltd v Caltex Petroleum Pty Ltd [2001] NSWSC 411
Case: [2001] NSWSC 411
Decision Date: 18 May 2001

CaseChat Overview and Summary

In the matter of Scanruby Pty Ltd versus Caltex Petroleum Pty Ltd, the case arose from a dispute concerning an offer of compromise made by the plaintiff, Scanruby, which it subsequently sought to withdraw after new evidence was produced. The defendants, Caltex, accepted the offer but argued that the withdrawal was invalid as it was not made with prior leave. The case was heard in the Supreme Court of New South Wales. The plaintiff sought leave to withdraw the offer nunc pro tunc, which means as of now, to correct a past error in the proceedings before judgment was entered.

The court was required to determine whether the plaintiff could be granted leave to withdraw the offer of compromise nunc pro tunc, as per the Supreme Court Rules Part 22 Rule 3. The defendants contended that the plaintiff's attempt to withdraw the offer after the defendants had accepted it was invalid and that the plaintiff was required to seek leave from the court before withdrawing the offer. The plaintiff argued that the new evidence warranted the withdrawal of the offer and that such leave could be granted nunc pro tunc, prior to the entry of judgment.

The court held that the plaintiff's offer of compromise could be withdrawn nunc pro tunc, provided that it was in the interests of justice to do so. The court found that the plaintiff had acted reasonably and in good faith by seeking to withdraw the offer based on the new evidence. The court also noted that the defendants had not suffered any prejudice or substantial inconvenience by the withdrawal, as they had already accepted the offer and the case was nearing its conclusion. The court granted the plaintiff leave to withdraw the offer nunc pro tunc, and the case proceeded to judgment with the withdrawal taken into account.

The final orders of the court included granting the plaintiff leave to withdraw the offer of compromise nunc pro tunc, and the judgment was entered accordingly. The court's decision emphasised the importance of acting in good faith and in the interests of justice when making offers of compromise and seeking to withdraw them. The court also highlighted the importance of seeking leave from the court before withdrawing an offer, except in cases where it is in the interests of justice to do so nunc pro tunc.

Orders