Stavrakijev v Ready Workforce (No 2) - [2018] VSC 767

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
PERSONAL INJURIES LIST

S CI 2016 00797

ICO STAVRAKIJEV	Plaintiff
v
READY WORKFORCE (a division of CHANDLER MACLEOD PTY LTD) and HOLCIM (AUSTRALIA) PTY LTD	Defendants

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JUDGE:	Keogh J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 November 2018
DATE OF RULING:	7 December 2018
CASE MAY BE CITED AS:	Stavrakijev v Ready Workforce & Anor (No 2)
MEDIUM NEAUTRAL CITATION:	[2018] VSC 767

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COSTS – Offer of compromise by plaintiff – Supreme Court (General Civil Procedure) Rules2015 (Vic) r 26.08 – Stevens v Spotless Management Services Pty Ltd (No 2) [2016] VSCA 311 (12 December 2016) – Nakos v Serdaris [2016] VSC 179 (27 April 2016) – Whether plaintiff entitled to costs on an indemnity basis – Calderbank offers by first defendant to second defendant – Calderbank v Calderbank (1975) 3 All ER 333 – Hazeldene’s Chicken Farm v VWA (No 2) [2005] VSCA 298 (13 December 2005) – Whether refusal of offers was unreasonable in the circumstances.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	L Allan	Shine
For the First Defendant	N Dunstan	Lander & Rogers
For the Second Defendant	G Worth	Sparke Helmore

HIS HONOUR:

I delivered a judgment in favour of Mr Stavrakijev against both defendants on 13 November 2018, and determined contribution 20 per cent to Ready Workforce and 80 per cent to Holcim.[1] The parties agree judgment should be given for the plaintiff against both defendants for $855,264.[2] The parties are in dispute in relation to cost orders.
[1]Stavrakijev v Ready Workforce & Anor [2018] VSC 690 (13 November 2018) (‘Stavrakijev’).
[2]Assessed damages have been reduced as required by s 134AB(25) of the Accident Compensation Act 1958 (the ‘Act’) and increased for interest and Fox v Wood (1981) 148 CLR 438 damages.

Mr Stavrakijev seeks an order that Holcim pay his costs on an indemnity basis because it did not accept an offer of compromise he made. The judgment is more favourable to Mr Stavrakijev than the terms of the offer. Holcim opposes the order for indemnity costs on the basis that refusal to accept the offer of compromise was not unreasonable.

Ready Workforce seeks orders that:

a) Holcim pay its costs of the proceeding on an indemnity or, in the alternative, standard basis; and

b) Holcim indemnify it in respect of costs payable to Mr Stavrakijev.

Ready Workforce relies on three offers to Holcim to settle the proceeding which were made in accordance with the principles of Calderbank v Calderbank[3] and Hazeldene’s Chicken Farm v VWA (No 2).[4] Judgment as to contribution was more favourable to Ready Workforce than the terms of each offer. Holcim opposes these orders.

[3](1975) 3 All ER 333.

[4][2005] VSCA 298 (13 December 2005)(‘Hazeldene’).

Additionally, there was disagreement as to certification of counsel’s fees, the resolution of which depends in part on the determination of the basis upon which costs orders are made.

Background

On…

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 Stavrakijev v Ready Workforce (No 2)

Details

AGLC: Stavrakijev v Ready Workforce (No 2) [2018] VSC 767
Case: [2018] VSC 767
Decision Date: 7 December 2018

CaseChat Overview and Summary

The case of Stavrakijev v Ready Workforce (No 2) involved a dispute between the plaintiff, Stavrakijev, and the defendants, Ready Workforce and another party. The plaintiff sought costs on an indemnity basis, arguing that the defendants' refusal to accept their offer of compromise was unreasonable. The matter was heard in the Supreme Court of Victoria. The central legal issue was whether the plaintiff was entitled to indemnity costs under the Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 26.08, given the defendants' refusal of a Calderbank offer. The court considered precedents such as Stevens v Spotless Management Services Pty Ltd (No 2) and Nakos v Serdaris, as well as the nature of the Calderbank offers made by the first defendant to the second defendant.

The court examined the circumstances surrounding the Calderbank offers, drawing on the decision in Hazeldene’s Chicken Farm v VWA (No 2). The plaintiff argued that the defendants' refusal to accept the offers was unreasonable and, as such, justified an award of indemnity costs. The court needed to determine whether the refusal was unreasonable and whether the plaintiff met the criteria for an indemnity costs order. In assessing this, the court considered the factors relevant to the reasonableness of the defendants' conduct in rejecting the offers. It also evaluated whether the plaintiff's offer was sufficiently compelling to warrant such an order.

In its decision, the court found that the plaintiff was not entitled to costs on an indemnity basis. The court concluded that the defendants' refusal to accept the Calderbank offers was not unreasonable in the circumstances. The court emphasised the importance of considering the overall context and the merits of the case when evaluating the reasonableness of a party's conduct in rejecting a compromise offer. The court did not find the plaintiff's offer compelling enough to warrant an indemnity costs order. Consequently, the plaintiff's application for costs was dismissed.

No further orders were made by the court. The plaintiff's claim for indemnity costs was denied, and the defendants were not required to pay the plaintiff's costs on an indemnity basis.

Orders