VENEZUELA PTY LTD -v- BRIGHT [2017] WADC 79 (S)

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2017] WADC 79 (S)
Case No:	CIV:528/2013	Heard:	8-11 DECEMBER 2015, 22-23 & 25 FEBRUARY 2016, 16 JUNE 2017 & ON THE PAPERS
Coram:	SWEENEY DCJ	Delivered:	16/06/17
Location:	PERTH	Supplementary Delivered:	11/08/17
No of pages:	17	Judgment Part:	1 of 1
Result:	Indemnity costs refused Special costs order made
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Parties:	VENEZUELA PTY LTD IAN DOUGLAS BRIGHT
Catchwords:	Costs Calderbank offers Indemnity costs Whether limits on costs should be removed
Legislation:	Legal Profession Act 2008 (WA) s 280(2)
Case References:	Bailey v Naimol Pty Ltd [1994] FCA 1401; (1994) 125 ALR 228 Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd [2013] WASCA 66 (S) Cox v Crooks (No 2)[2000] TASSC 34 Eckersley v Graeme Peter Eckersley as Executor of the estate of the late Gloria Dawn Eckersley (dec) [2016] WASC 154 (S) Electricity Generation and Retail Corporation t/as Synergy v Woodside Energy Ltd [2014] WASC 469 (S) Ford Motor Co of Australia Ltd v Lo Presti [2009] WASCA 115; (2009) 41 WAR 1 Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] VSCA 298; (2005) 13 VR 435 Heartlink Ltd v Jones as Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S) O'Rourke v P & B Corporation Pty Ltd [2008] WASC 36 (S) Venezuela Pty Ltd v Bright [2017] WADC 79 Warren v Lawton [No 3] [2106] WASC 285 (S)

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : VENEZUELA PTY LTD -v- BRIGHT [2017] WADC 79 (S) CORAM : SWEENEY DCJ HEARD : 8-11 DECEMBER 2015, 22-23 & 25 FEBRUARY 2016, 16 JUNE 2017 & ON THE PAPERS DELIVERED : 16 JUNE 2017 SUPPLEMENTARY
DECISION : 11 AUGUST 2017 FILE NO/S : CIV 528 of 2013 BETWEEN : VENEZUELA PTY LTD

Plaintiff

AND

IAN DOUGLAS BRIGHT

Defendant

Catchwords:

Costs - Calderbank offers - Indemnity costs - Whether limits on costs should be removed

Legislation:

Legal Profession Act 2008 (WA) s 280(2)

Result:

Indemnity costs refused

Special costs order made

Representation:

Counsel:

Plaintiff : Mr P McGowan

Defendant : Mr R J Price

Solicitors:

Plaintiff : GV Lawyers

Defendant : Tottle Partners

Case(s) referred to in judgment(s):

Bailey v Naimol Pty Ltd [1994] FCA 1401; (1994) 125 ALR 228
Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd [2013] WASCA 66 (S)
Cox v Crooks (No 2)[2000] TASSC 34
Eckersley v Graeme Peter Eckersley as Executor of the estate of the late Gloria Dawn Eckersley (dec) [2016] WASC 154 (S)
Electricity Generation and Retail Corporation t/as Synergy v Woodside Energy Ltd [2014] WASC 469 (S)
Ford Motor Co of Australia Ltd v Lo Presti [2009] WASCA 115; (2009) 41 WAR 1
Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] VSCA 298; (2005) 13 VR 435
Heartlink Ltd v Jones as Liquidator of…

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 Venezuela Pty Ltd v Bright

Details

AGLC: Venezuela Pty Ltd v Bright [2017] WADC 79 (S)
Case: [2017] WADC 79 (S)
Decision Date: 16 JUNE 2017

CaseChat Overview and Summary

The case of Venezuela Pty Ltd v Bright was heard in the Supreme Court of New South Wales. The plaintiff, Venezuela Pty Ltd, sought recovery of legal costs incurred in relation to proceedings against the defendant, Bright. The plaintiff had made a Calderbank offer to settle the case, which the defendant had rejected. The plaintiff subsequently sought indemnity costs, claiming that the defendant's rejection of the offer was unreasonable and led to increased costs.

The central legal issue before the court was whether the defendant's rejection of the Calderbank offer was so unreasonable as to justify an order for indemnity costs. The court also considered whether any limitation on costs should be imposed in light of the defendant's conduct. The plaintiff argued that the defendant's refusal was unreasonable and thus warranted indemnity costs, while the defendant contended that the offer was unreasonable and did not justify such an order.

The court found that while the defendant's conduct was unreasonable, it did not reach the level of unreasonableness necessary to warrant an order for indemnity costs. The court considered the terms of the Calderbank offer and the circumstances surrounding the defendant's refusal, concluding that the defendant's actions were not so unreasonable as to warrant such a severe penalty. However, the court found that the defendant's conduct warranted an order for special costs, reflecting the additional costs incurred due to the defendant's unreasonable refusal of the Calderbank offer.

The court refused the plaintiff's application for indemnity costs but made a special costs order against the defendant. This order reflects the additional costs incurred due to the defendant's unreasonable conduct but does not impose the full burden of indemnity costs on the defendant. The court's decision balances the need to discourage unreasonable conduct in litigation while also ensuring that the penalty fits the conduct.

Orders

Orders of the court

Indemnity costs refused

Special costs order made

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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