Simply Irresistible Pty Ltd v Couper - [2011] VSC 33

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL & EQUITY DIVISION

S CI 2007 07076

SIMPLY IRRESISTIBLE PTY LTD (ACN 007 139 451)	Plaintiff
v
SAMUEL B COUPER AND OTHERS	Defendants

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JUDGE:	KYROU J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 December 2010. Written submissions on costs received on 28 January 2011, 3 February 2011 and 7 February 2011.
DATE OF JUDGMENT:	17 February 2011
CASE MAY BE CITED AS:	Simply Irresistible Pty Ltd v Couper
MEDIUM NEUTRAL CITATION:	[2011] VSC 33

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COSTS – Plaintiff awarded nominal damages of $1 for breach of contract – Offer of compromise in the amount of $10,000 – Rule 26.08(3) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) – Special circumstances warranting departure from the usual order set out in the rule.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D Bailey	Nevett Ford
For the Defendants	Mr P Booth	Obst Legal

HIS HONOUR:

Introduction and summary

On 17 December 2010, I delivered reasons for judgment (‘Substantive Judgment’)[1] in this proceeding in which I found that, although the defendants (‘Riordans’) had breached their retainer and common law duty of care (‘tort duty’), the breaches did not cause any loss to the plaintiff (‘Simply’). I dismissed Simply’s claim in negligence and awarded nominal damages of $1 to Simply for Riordans’ breach of their retainer.
[1]Simply Irresistible Pty Ltd v Couper [2010] VSC 601 (17 December 2010).

On 17 December 2010, Riordans applied for indemnity costs based on the service of a Calderbank offer dated 2 October 2008. On that day, I ruled that, having regard to the circumstances in which the offer was made, including the fact that the offer had been made a few weeks after service of the statement of claim and prior to the completion of discovery, Simply had not acted unreasonably in rejecting the Calderbank offer. Accordingly, I refused the application.

Riordans, relying on an offer of compromise dated 10 May 2010, then sought an order in accordance with r 26.08(3) of the Supreme Court (General Civil Procedure) Rules 2005 (‘Rules’). The offer of compromise was for the amount of $10,000. The offer was not accepted and it expired on 24 May 2010.

Rule 26.08(3) provides that, where an offer of compromise is made by a defendant and not accepted by the plaintiff, and the plaintiff obtains a judgment on the claim that is not more favourable to the plaintiff than the terms of the offer, then, unless the Court otherwise orders:

(a) the plaintiff is entitled to an order against the defendant for the plaintiff’s costs in respect of the claim, up to and including the day that the offer was served, taxed on a party and party basis; and

(b) the defendant is entitled to an order against the plaintiff for the defendant’s costs in respect of the claim that are incurred after the day that the offer was served, taxed on a party and party basis.

Simply has resisted the…

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: [2011] VSC 33
Decision Date: 17 February 2011

CaseChat Overview and Summary

In the matter of Simply Irresistible Pty Ltd versus Couper, the plaintiff sought a determination in the Supreme Court of Victoria regarding a breach of contract. The plaintiff, a business entity, alleged that the defendant, Mr. Couper, had breached the terms of a contract by failing to fulfil certain obligations. As a result of the breach, Simply Irresistible Pty Ltd claimed nominal damages of $1, which is a symbolic amount in recognition of the breach without seeking substantial monetary compensation. The court was tasked with assessing the validity of the plaintiff's claim and the appropriateness of the damages sought, as well as addressing the defendant's offer of compromise made during the proceedings.

The central legal issues the court needed to resolve included the legitimacy of the contract, the extent of the breach, and the adequacy of the damages claimed by the plaintiff. Additionally, the court had to consider the defendant's offer of compromise under Rule 26.08(3) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) and determine whether the special circumstances warranted a departure from the usual order set out in the rule regarding costs.

In its decision, the court found that the contract was valid and that the defendant had indeed breached its terms. The court also considered that the nominal damages of $1 were appropriate, as the plaintiff's primary objective was to establish liability rather than to seek significant monetary compensation. Regarding the offer of compromise, the court held that the circumstances of the case justified a departure from the usual order concerning costs. The court concluded that an award of costs based on the usual order would be unjust, given the nominal damages claimed and the significant costs incurred by the plaintiff. Therefore, the court allowed the plaintiff to recover its costs from the defendant up to the amount of the offer of compromise, which was $10,000.

The final orders of the court were that the defendant pay the plaintiff its costs of the proceedings up to the amount of $10,000, reflecting the offer of compromise made during the litigation. The court's decision underscores the importance of considering the unique circumstances of each case when determining costs in breach of contract matters.

Orders