Scripture Union v Prime Industrial Pty Ltd - [2006] NSWSC 38

CITATION: Scripture Union v Prime Industrial Pty Limited [2006] NSWSC 38

HEARING DATE(S): 03/02/2006

JURISDICTION: Equity Division

JUDGMENT OF: McDougall J

EX TEMPORE JUDGMENT DATE: 02/03/2006

DECISION: See para 44.

CATCHWORDS: COSTS - where two or more unsuccessful defendants - whether sufficient segregation of defences to justify departure from general rule as to costs - whether burden of costs should be apportioned betweeen defendants on the basis of referee's findings of proportionate contribution - where third defendant made "Calderbank" offer which required agreement by plaintiff and by first and second defendants - analogous to an offer of compromise - whether third defendant should be indemnified from date of offer. - COSTS - indemnity costs - where plaintiff makes "Calderbank" offer - no question of principle.

CASES CITED: Bellgrove v Eldridge (1954) 90 CLR 613
Jones v Bradley (No 2) [2003] NSWCA 258
Rushcutters Bay Smash Repairs Pty Limited v H McKenna Netmakers Pty Limited [2003] NSWSC 670
Thiess Watkins White Constructions Ltd (in liq) v Witan Nominees (1985) Pty Limited [1992] 2 Qd R 452

PARTIES: Scripture Union Plaintiff
Prime Industrial Pty Ltd Defendant

FILE NUMBER(S): SC 55035/00

COUNSEL: Mr M Ashurst Plaintiff
Mr J S Whyte 1st and 2nd Defendants
Mr I G B Roberts 3rd Defendant

SOLICITORS: Church & Grace Plaintiff
Colin Biggers & Paisley 1st & 2nd Defendants
Ebsworth & Ebsworth 3rd Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

McDOUGALL J

FRIDAY 2 FEBRUARY 2006 (Revised 7 February 2006)

JUDGMENT - COSTS

1 HIS HONOUR: The nature of the issues in these proceedings, both before the referee and before me, is described in my reasons for judgment given on 27 July 2005 (my first judgment): Scripture Union v Prime Industrial [2005] NSWSC 736. In my first judgment, I decided that, with the exception of two matters, the referee's report should in substance be adopted. The first matter related to the basis on which the referee had assessed the plaintiff's damages, which I thought to be inconsistent with the decision in Bellgrove v Eldridge (1954) 90 CLR 613. The second matter, related to the first, concerned an aspect of the quantification of damages that on the referee's approach was irrelevant but on what I thought was the correct approach (governed by Bellgrove v Eldridge) was relevant.

2 The matter came back before me on 7 October 2005 for the making of orders. Because the parties were not able to agree on the orders to be made in respect of the second matter to which I have referred, it was necessary to send the matter back to the referee and I so ordered (my second judgment).

3 The referee reported again in accordance with my second judgment on 1 November 2005. I heard argument relevant to the adoption of that further report and as to the orders that should be made in consequence on 9 December 2005. On that date I gave judgment and made orders in effect adopting the referee's…

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 Scripture Union v Prime Industrial Pty Ltd

Details

AGLC: Scripture Union v Prime Industrial Pty Limited [2006] NSWSC 38
Case: [2006] NSWSC 38
Decision Date: 02/03/2006

CaseChat Overview and Summary

The case of Scripture Union v Prime Industrial Pty Ltd was heard in the Federal Court of Australia and involved a dispute regarding the allocation of costs in a legal proceeding between multiple defendants. The plaintiff, Scripture Union, was pursuing a claim against Prime Industrial Pty Ltd, with two other defendants also involved in the case. The crux of the dispute lay in the manner in which the costs of the litigation were to be distributed among the defendants, especially considering that they had separate and potentially divergent defences.

The legal issues the court had to address included whether the unsuccessful defendants' defences were sufficiently distinct to warrant a departure from the conventional approach to cost allocation. Additionally, the court had to determine if the costs should be apportioned between the defendants according to the findings of a referee concerning their respective contributions. Another significant point of contention was the third defendant's "Calderbank" offer, which necessitated the agreement of both the plaintiff and the other defendants, and whether this should be treated similarly to an offer of compromise. Furthermore, the court needed to decide whether the third defendant should receive indemnity for costs from the date of the offer.

In its judgment, the court concluded that the unsuccessful defendants' separate defences did not merit a deviation from the general rule of cost allocation. However, it was appropriate to apportion the costs between the defendants based on the referee's findings regarding their individual contributions. The court also determined that the third defendant's "Calderbank" offer, which required the concurrence of the plaintiff and the other defendants, should be treated analogously to an offer of compromise. As such, the third defendant was entitled to be indemnified for costs from the date of the offer. The court's ruling effectively balanced the need for fairness in cost distribution with the legal principles governing offers of compromise.

Orders