Tattersall v Dormakaba Australia Pty Ltd (No 2)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Tattersall v Dormakaba Australia Pty Ltd (No 2)

Citation: 

[2024] ACTSC 28

Hearing Date: 

15 December 2023

Decision Date: 

14 February 2024

Before:

Mossop J

Decision: 

See [39].

Catchwords: 

CIVIL LAW – COSTS – Plaintiff purported to make offer of compromise pursuant to Pt 2.10 of the Court Procedures Rules 2006 (ACT) – offer failed to set out terms of orders proposed – offer not an offer of compromise within the meaning of r 1002 – whether plaintiff's offer was instead a Calderbank offer – offer not capable of acceptance by one defendant on behalf of others – first defendant’s offer of compromise to third and fourth defendants eminently reasonable – costs apportioned in line with liability for principal judgment up to date of first defendant’s offer of compromise – third and fourth defendant to pay plaintiff’s and first defendant’s costs from date after first defendant’s offer of compromise

Legislation Cited: 

Civil Law (Wrongs) Act 2002 (ACT), s 21
Court Procedures Rules 2006 (ACT), Pt 2.10, rr 1002, 1010
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited: 

King v Yurisich (No 2) [2007] FCAFC 51
Vieira v O’Shea [2012] NSWCA 21
Vieira v O’Shea (No 2) [2012] NSWCA 121

Parties: 

Benjamin Tattersall ( Plaintiff)

Dormakaba Australia Pty Ltd ( First Defendant)

Zavindi Pty Ltd t/as Goulburn Roller Doors (Third Defendant)

Nathan Flanagan (Fourth Defendant)

Representation: 

Counsel

B Jullienne ( Plaintiff)

M Nesbeth ( First Defendant)

J Moffett (Third and Fourth Defendants)

Solicitors

Blumers Personal Injury Lawyers ( Plaintiff)

Barry Nilsson Lawyers (First Defendant)

Mills Oakley (Third and Fourth Defendants)

File Number:

SC 47 of 2023

MOSSOP J:  

Introduction

1․On 14 December 2023 the court gave judgment in favour of the plaintiff against the first defendant, and the third and fourth defendants in the sum of $347,470. It declared that as between the first defendant on the one hand and the third and fourth defendants on the other hand, each was entitled to contribution from the other so that the first defendant bore 30 percent of the liability to the plaintiff and the third and fourth defendants jointly bore 70 percent of the liability. Assuming no issue as to the capacity of those defendants to pay the judgment, that would mean that the first defendant would be liable for $104,241 and the third and fourth defendants would be liable for $243,229.

2․Argument in relation to costs was heard on 15 December 2023.

3․In summary, as a result of the making of an offer of compromise, the plaintiff sought an order that the defendants pay his costs on a solicitor and client basis for the whole of the proceedings.

4․The first defendant sought an order that its costs from 1 December 2023 should be paid by the third and fourth defendants on an indemnity basis and that the third and fourth defendants should pay the entirety of the plaintiff's costs from 1 December 2023. That was based upon the third and fourth defendants’…