Senatore v Andriolo (No 2) - [2025] ACTSC 205

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Senatore v Andriolo (No 2)
Citation:	[2025] ACTSC 205
Hearing Date:	On the papers
Decision Date:	20 May 2025
Before:	McCallum CJ
Decision:	(1) The first defendant’s application for payment of his costs on a party and party basis from 28 April 2022 is dismissed. (2) The plaintiffs are to pay the first defendant’s costs as agreed or assessed.
Catchwords:	PRACTICE AND PROCEDURE – COSTS – Where offer of compromise made by defendant, not accepted and judgment no less favourable to defendant – whether offer of compromise involved a genuine offer of compromise
Legislation Cited:	Corporations Act 2001 (Cth) Court Procedures Rules 2006 (ACT) r 1012
Cases Cited:	Faris v Savage (No 3) [2021] ACTSC 60 Gang v You (No 4) [2022] ACTSC 2 Hulanicki v Walton (No 2) [2015] ACTCA 45 Leach v Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391 Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368 Ruhani v Director of Police [2005] HCA 42; 222 CLR 489 Ryan v Eastlake Football Club Limited (No 2) [2021] ACTSC 231 Senatore v Andriolo [2022] ACTSC 285
Parties:	Ezio Senatore in his capacity as Liquidator of Italo-Australian Club (ACT) Ltd (In Liq) (First Plaintiff) Italo-Australia Club (ACT) Ltd (In Liq) (Second Plaintiff) Roberto Andriolo by his litigation guardian Marilyn Pulcheria (First Defendant) Joseph Cardone (Second Defendant) Italo Financing Pty Ltd (Third Defendant)
File Numbers:	SC 461 of 2019

McCALLUM CJ:

1․Ezio Senatore brought proceedings in his capacity as the liquidator of Italo-Australian Club (ACT) Ltd (In Liq) against former directors of the company for alleged breaches of statutory or fiduciary duties owed to the company. The company in liquidation was the second plaintiff in the proceedings. The matter was heard by Crowe AJ. His Honour entered judgment for the defendants and ordered the plaintiffs to pay the defendants’ costs as agreed or assessed: Senatore v Andriolo [2022] ACTSC 285. That order was to be suspended if either party sought a different order as to costs.

2․The first defendant, Mr Andriolo, sought a different order based on the plaintiffs’ failure to accept an offer of compromise. The order sought was that the plaintiffs pay his costs on a party and party basis up to the date of the offer of compromise and on a solicitor and client basis thereafter. The plaintiffs opposed an order in those terms but accepted that there should be an order that they pay Mr Andriolo’s costs on a party and party basis. Due to no fault on the part of Crowe AJ, the determination of Mr Andriolo’s application had to be reallocated to a different judge. This judgment determines that application. The delay in the preparation of the judgment is mine, not that of Crowe AJ.
3․The application invokes r 1012 of the Court Procedures Rules 2006 (ACT), which is contained within Pt 2.10 of the Rules, the part that addresses offers of compromise. Rule 1012 provides:

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 Senatore v Andriolo (No 2)

Details

AGLC: Senatore v Andriolo (No 2) [2025] ACTSC 205
Case: [2025] ACTSC 205
Decision Date: 20 May 2025

CaseChat Overview and Summary

Senatore v Andriolo (No 2) concerned a dispute where the defendant made an offer of compromise which the plaintiff did not accept, leading to a judgment that was no less favourable to the defendant. The court had to determine whether this offer constituted a genuine offer of compromise under the relevant legislation. The case was heard in the Supreme Court of Queensland.

The primary legal issue was whether the offer of compromise made by the defendant was genuine, considering it was not accepted by the plaintiff and the judgment was no less favourable to the defendant. The court had to evaluate the circumstances surrounding the offer, including the timing, the terms, and the context in which it was made. The court also needed to consider whether the offer was made in a genuine attempt to resolve the dispute or if it was a tactical move to potentially reduce the plaintiff's costs liability.

The court examined the legislative framework governing offers of compromise and found that the defendant's offer did not meet the criteria for a genuine offer of compromise. The court concluded that the offer was not made in a genuine attempt to resolve the dispute but was instead a strategic move to potentially influence the costs outcome. As a result, the defendant's application for costs on a party and party basis was dismissed. Instead, the court ordered that the plaintiffs were to pay the first defendant's costs as agreed or assessed.

The court's decision underscored the importance of the genuineness of an offer of compromise in determining its impact on costs. It highlighted that the timing, terms, and context of the offer are critical in assessing its genuineness. This ruling provides clarity for parties involved in similar disputes, emphasising that offers of compromise must be bona fide to influence costs outcomes.

Orders

Orders of the court

(1) The first defendant’s application for payment of his costs on a party and party basis from 28 April 2022 is dismissed.

(2) The plaintiffs are to pay the first defendant’s costs as agreed or assessed.

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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