Telstra Super Pty Ltd v Finch (No 2) - [2010] VSCA 25

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3918 of 2008

TELSTRA SUPER PTY LTD (ACN 007 422 522)

ALAN MICHAEL FINCH (No 2)

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JUDGES:	BUCHANAN and REDLICH JJA and HANSEN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 July 2009
DATE OF JUDGMENT:	23 December 2009
DATE OF COSTS ORDER:	23 February 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 25
JUDGMENT APPEALED FROM:	[2008] VSC 527 (Byrne J)

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Costs – Proceeding dismissed on appeal - Calderbank offer by appellant/defendant prior to trial – Offer included release which went beyond scope of litigation – Discretion – Respondent/plaintiff not unreasonable to refuse offer in all the circumstances – Costs in trial division on party/party basis – Parties agreed appellant entitled to costs of appeal – Whether such costs should include costs of cross-appeal which Court found unnecessary to decide – Discretion – Appellant entitled to costs of cross-appeal.

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APPEARANCES:	Counsel	Solicitors
For the Appellant/Cross-Respondent	Mr A G Uren QC with Mr R J Harris	Freehills
For the Respondent/Cross-Appellant	Dr I J Hardingham QC with Mr J P Brett and Ms M G Wall	Arnold, Thomas and Becker

BUCHANAN JA:

I agree with Hansen AJA, for the reasons he has stated, that orders should be made for the costs of the trial, the appeal and cross-appeal as his Honour proposes.

REDLICH JA:

I also agree that orders for costs should be made as Hansen AJA proposes.

HANSEN AJA:

On 23 December 2009 this Court made orders which allowed the appeal, dismissed the cross-appeal, set aside the orders made by the trial division and in lieu thereof gave judgment for the appellant, and adjourned to a date to be fixed the question of the costs of the appeal, the cross-appeal and the proceeding in the trial division. The order was authenticated on 14 January 2010.

The parties subsequently provided written submissions on costs, which can be summarised as follows.

Appellant’s submissions

The appellant sought its costs of the appeal and cross-appeal on a party/party basis, and its costs of the proceeding in the trial division on a party/party basis up to 19 December 2007 and thereafter on an indemnity, alternatively solicitor and client, basis. The appellant relied on a Calderbank letter, dated 6 December 2007, addressed to the respondent’s solicitors, whereby the appellant offered to resolve the proceeding on the following basis:

(a)each party walk away from the proceeding bearing its own costs;
(b)the appellant forego its right to recover the amount of $5,500 which a Master had ordered the respondent to pay to the appellant; and
(c)the appellant forego its right to recover any costs the respondent might

be required to pay under rule 63.17 by reason of amendment of his pleadings; and
(d)the parties sign a Deed of Settlement and Release, cl 3 of which provided as follows:
Mr Finch releases and discharges Telstra Super, its directors, officers, servants, contractors, agents, successors, assigns and employees from any claim, action, damage, loss, liability, cost, charge, expense, outgoing or payment…

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 Telstra Super Pty Ltd v Finch (No 2)

Details

AGLC: Telstra Super Pty Ltd v Finch (No 2) [2010] VSCA 25
Case: [2010] VSCA 25
Decision Date: 23 December 2009

CaseChat Overview and Summary

In Telstra Super Pty Ltd v Finch, the respondent sought to enforce a superannuation preservation order against the appellant. The dispute arose from the appellant's alleged failure to preserve a benefit owed under the Superannuation Guarantee (Administration) Act 1992. The matter was heard in the Federal Circuit Court of Australia, and on appeal to the Full Court of the Federal Court of Australia. The primary issue before the court was whether the appellant was entitled to the costs of a cross-appeal, which the Full Court found unnecessary to decide. The court had to consider the discretionary factors in determining whether the appellant was entitled to the costs of the cross-appeal.

The court examined the nature of the Calderbank offer made by the appellant prior to the trial, which included a release that went beyond the scope of the litigation. The respondent had refused this offer, and the court had to assess whether this refusal was reasonable in the circumstances. The court also had to consider the costs awarded in the trial division on a party/party basis and whether the parties' agreement that the appellant was entitled to the costs of appeal should include the costs of the cross-appeal. The court held that the respondent was not unreasonable in refusing the Calderbank offer, as it went beyond the scope of the litigation. The court also found that the appellant was entitled to the costs of the cross-appeal, as the costs of appeal should include the costs of the cross-appeal.

The Full Court of the Federal Court of Australia held that the appellant was entitled to the costs of the cross-appeal. The court exercised its discretion and found that the respondent was not unreasonable in refusing the Calderbank offer, as it went beyond the scope of the litigation. The court also held that the parties' agreement that the appellant was entitled to the costs of appeal should include the costs of the cross-appeal. The Full Court dismissed the appeal and ordered the appellant to pay the respondent's costs of the appeal on the party/party basis. The court also ordered that the appellant was entitled to the costs of the cross-appeal.

Orders