Shoveller v Dak-Wal Constructions Pty Ltd (No 4) - [2021] NSWSC 509

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Shoveller v Dak-Wal Constructions Pty Ltd (No 4) [2021] NSWSC 509
Hearing dates: 7-11 September 2020
Decision date: 11 May 2021
Jurisdiction: Common Law
Before: Rothman J
Decision:
(1)   Vary Order 1, issued in these proceedings on 8 April 2021, by inserting after the words “seventh defendants”, the phrase “in the sum of $3,000,000.00 (the ‘judgment sum’)”.
(2)   Delete from Orders 3 and 4, issued in these proceedings on 8 April 2021, the words “first defendant/second cross-defendant” in Order 3 and “first cross-defendant” in Order 4 and insert “Dak-Wal Constructions Pty Ltd” and “Akota Construction Pty Ltd” respectively.
(3)   Insert a new Order in the Orders, issued in these proceedings on 8 April 2021, being Order (3A), in the following terms:
“(3A)   As a matter of abundant caution, a declaration that, as a result of the orders in these proceedings, the first defendant, Dak-Wal Constructions Pty Ltd, is liable for 100% of the judgment sum.”
(4)   Vacate Orders 8 and 9, issued in these proceedings on 8 April 2021.
(5)   The first defendant and the third to seventh defendants are to pay the plaintiff’s costs on an ordinary basis up to and including 26 August 2020 and thereafter on an indemnity basis.
(6)   The first defendant is to pay the second defendant’s costs in relation to the proceedings between the plaintiff and the second defendant on an ordinary basis up to and including 31 July 2020 and thereafter on an indemnity basis.
(7)   The first defendant is to pay the second defendant’s costs of all Cross-Claims on an ordinary basis up to and including 31 July 2020 and thereafter on an indemnity basis.
(8)   The first defendant is to indemnify the third to seventh defendants in relation to costs orders referred to in Order 5 above.
(9)   The first defendant is to pay the costs of the third to seventh defendants/cross-claimants to the First Cross-Claim and the second, third, fourth, fifth and sixth cross-defendants to the Second Cross-Claim on an ordinary basis up to and including 10 March 2020 and thereafter on an indemnity basis.
(10)   Otherwise, proceedings dismissed.

Catchwords:
COSTS – Calderbank letters – Offers to Contribute – multiple defendants – real compromise – unreasonable not to accept – indemnity costs ordered
JUDGMENT and ORDERS – amendment – mistake as to identity of cross-defendant – inconsistent documents – orders not manifesting Court’s intention – amendment effected

Legislation Cited:
Civil Procedure Act 2005 (NSW) s 98
Uniform Civil Procedure Rules 2005 (NSW) rr 36.11(2), 36.16(3A)

Cases Cited:
Bullock v London General Omnibus Co [1907] 1 KB 264
Commissioner for Fair Trading v Jonval Builders Pty Ltd (No 2) [2020] NSWSC 1308
DJL v The Central Authority (2000) 201 CLR 226; [2000] HCA 17
Shoveller v Dak-Wal Constructions Pty Ltd (No 3) [2021] NSWSC 352

Category: Consequential orders
Parties: Alfred Shoveller (Plaintiff)
Dak-Wal Constructions Pty Ltd (First Defendant)
Akota Construction Pty Ltd (Second Defendant)
Joanne Patricia Cunningham (Third Defendant)
Merran…

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.

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Details

Case: [2021] NSWSC 509
Decision Date: 11 May 2021

CaseChat Overview and Summary

The case involved Shoveller, the plaintiff, who filed a claim against Dak-Wal Constructions Pty Ltd and others. The dispute centred around construction defects and associated damages. The matter was heard in the Supreme Court of Victoria. The plaintiff sought to amend a settlement offer after a mistake was made in identifying one of the defendants. The court needed to decide whether the amendment was permissible and whether the plaintiff's offer was reasonable.

The legal issues the court had to address included whether the plaintiff could correct the error in identifying the defendant in the settlement offer and if the offer was a genuine attempt at compromise. The court also needed to consider the implications of the error on the plaintiff's costs and whether the settlement offer was reasonable under the circumstances. The court examined the principles of Calderbank offers and whether it was unreasonable for the defendant to reject the offer.

In its reasoning, the court found that the plaintiff's error in identifying the defendant did not preclude the amendment of the Calderbank offer. The court held that the error was a clerical mistake and not indicative of any bad faith. The court further found that the plaintiff's offer was reasonable and that it was unreasonable for the defendant to reject it. Consequently, the court ordered the defendant to pay the plaintiff's costs of the proceeding, including indemnity costs. The court granted the plaintiff's application to amend the Calderbank offer and clarified that the orders should reflect the court's intention.

Orders