Tinyow v Lee

NEW SOUTH WALES COURT OF APPEAL

CITATION:      TINYOW v LEE & Anor  [2006]  NSWCA 247

FILE NUMBER(S):
41126/04

HEARING DATE(S):               

DECISION DATE:     04/09/2006

PARTIES:
Walter TINYOW  (Appellant) 
Thomas Ping Kwan LEE  (First Respondent) 
Willie Man Tak WONG  (Second Respondent) 

JUDGMENT OF:       Handley JA Santow JA Ipp JA   

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S):         Not Applicable

LOWER COURT JUDICIAL OFFICER:     Not Applicable

COUNSEL:
Written submissions: 
K E LEOTTA  (Appellant)
A J O’BRIEN  (Respondents)

SOLICITORS:
Raymond Lee & Co  (Appellant) 
Pigott Stinson Ratner Thom  (Respondents) 

CATCHWORDS:
COSTS – Indemnity costs – Calderbank letter. 

LEGISLATION CITED:
Uniform Civil Procedure Act  s98
Uniform Civil Procedure Rules Pt 20; Pt 42
Evidence Act 1995 s131(2)(h)

DECISION:
Application for indemnity costs dismissed with costs. 

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 41126/04
DC 9051/01
DC 9050/01 

HANDLEY JA
SANTOW JA
IPP JA

4 SEPTEMBER 2006

Walter TINYOW v Thomas Ping Kwan LEE and Another

Judgment

1. HANDLEY JA:  I agree with Santow JA. 

2. SANTOW JA: 

   INTRODUCTION

   The appellant, Walter Tinyow, was successful in his appeal; see judgment of 13 April 2006.  He obtained judgment in sums specified against his former co-shareholders Thomas Lee ($55,000) and Willie Wong ($65,000), respectively first and second respondents.  In regard to credit given in calculating these amounts, note para [51] of the judgment.  Cost orders were made in favour of Mr Tinyow in respect of both the appeal and before the District Court on a party-party basis. 

3. Following these orders, the appellant applied for costs on an indemnity basis from 10 May 2004 pursuant to s98 of the Uniform Civil Procedure Act (“UCPA”) and Pt 42 of the Uniform Civil Procedure Rules (“UCPR”). The appellant relies on what it describes as a Calderbank Letter (see below) of 10 May 2004.

4. Written submissions were received from both parties following the hearing, so enabling that issue to be determined without further hearing. 

   SALIENT FACTS 

5. The litigation between the parties proceeded as follows: 

   (a)The appellant filed a Statement of Claim on 6 September 2001 and an amended Statement of Claim pursuant to an order of the Court on 9 July 2002.  The matter was referred to arbitration, and hearings were held on 2 December 2002 and 30 January 2003. 

   (b)An arbitral award in favour of the appellant was handed down on 23 October 2003.  The award made in favour of the appellant was $61,401.10 (including interest) as against the first respondent, and $72,564.93 (including interest) as against the second respondent. 

   (c)The appellant made an offer to settle, via what it describes as a Calderbank letter on 10 May 2004 which received no response.  It did so two days before the matter was listed for hearing and gave effectively one working day to respond.  The letter was in the following terms: 

   “Mr Chris Sydes
   Piggott Stinson Ratner Thom
   Lawyers
   DX 125 SYDNEY

   BY FAX: [phone]  WITHOUT PREJUDICE SAVE AS TO COSTS 

   Dear Mr Sydes, 

   WALTER TINYOW –v- THOMAS PING KWAN LEE, DISTRICT COURT PROCEEDINGS…