Vesic v Vesic (No 2) - [2022] ACTSC 123

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Vesic v Vesic (No 2)

Citation:

[2022] ACTSC 123

Hearing Date:

On the papers

Decision Date:

26 May 2022

Before:

Crowe AJ

Decision:

(1)	There is no order as to costs as between the plaintiff and the first defendant.

(2) The plaintiff pay the second defendant’s costs of the

proceedings as agreed or assessed on a party and party
basis up to and including 29 April 2022.

(3) The plaintiff pay the second defendant’s costs as agreed or
assessed on an indemnity basis on and from 30 April 2022.
(4) There is no order as to costs in relation to the Notice claiming
contribution or indemnity dated 26 March 2021.

Catchwords:	CIVIL LAW – COSTS – Calderbank offers – whether a special
costs order should be made
Legislation Cited:	Court Procedures Rules 2006 (ACT) rr 1720, 1725
Cases Cited:	Calderbank v Calderbank [1975] 3 All ER 333 Hulanicki v Walton (No 2) [2015] ACTCA 45 Vesic v Vesic [2022] ACTSC 109
Parties:	Lillian Vesic (Plaintiff) John Jovan Vesic (First Defendant) William Love & Nicol Lawyers Pty Ltd trading as Bradley Allen Love Lawyers (Second Defendant)
Representation:	Counsel
M Noakhtar (Plaintiff) A Muller (First Defendant) A R Zahra SC (Second Defendant)
Solicitors
McInnes Wilson Lawyers (Plaintiff)
Reuben George Lawyers (First Defendant) Sparke Helmore (Second Defendant)
File Number(s):	SC 295 of 2020
Crowe AJ

1. On 19 May 2022 I delivered judgment in this matter: see Vesic v Vesic [2022] ACTSC 109. I made the following orders:

(1) Judgment for the plaintiff against the first defendant in the sum of $31,654.45.
(2) Judgment for the second defendant.
(3) The Notice claiming contribution or indemnity filed on 26 March 2021 and issued
by the second defendant against the first defendant is dismissed.

2.       I also reserved the question of costs and gave directions for the filing of evidence and submissions in relation to that issue.
3.       The three parties have filed and served affidavits setting out the history of settlement offers made in an attempt to avoid the hearing of the case, which was listed for commencement on 2 May 2022. Written submissions have also been filed and served by each party.
4.       The following assumes familiarity with my reasons for decision published on 19 May
2022. As in those reasons, I refer to the plaintiff as “Lillian”, the first defendant as “John”
and the second defendant as “BAL”.
5.       The chronology of the offers made by John and/or BAL were as follows:

3 June 2021 Offer by John. Property to be sold, net proceeds (after payment
in full of existing mortgage debt (around $350,000) and costs of
sale) to be paid to the plaintiff. Proceedings to be dismissed with
no order as to costs
15 March 2022 Offer by John. New Deed to replace the 2014 Deed. No sale of
property. Mutual releases, with proceedings to be dismissed with
no order as to costs.
Under the new Deed John would be responsible…

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 Vesic v Vesic (No 2)

Details

AGLC: Vesic v Vesic (No 2) [2022] ACTSC 123
Case: [2022] ACTSC 123
Decision Date

CaseChat Overview and Summary

In Vesic v Vesic (No 2), Lillian Vesic sought costs and damages from her former husband, John Vesic, and their former solicitors, William Love & Nicol Lawyers Pty Ltd trading as Bradley Allen Love Lawyers (BAL). The case involved complex negotiations and settlement offers, leading to a detailed consideration of the costs implications. The primary legal issue was determining the appropriate allocation of costs among the parties, particularly in light of the settlement offers made under Calderbank principles.

The court examined the various settlement offers made by the parties, noting that while John and BAL made several offers, these did not align with the eventual judgment in Lillian's favour. The court concluded that Lillian's success was not comparable to the terms of the settlement offers, but also acknowledged that her failure to press certain claims might have influenced the outcome. Consequently, the court ruled that each party should bear their own costs. However, regarding BAL, the court found Lillian's rejection of BAL's clear offer on 29 April 2022 to be unreasonable, warranting an indemnity costs order from that date.

The court's final orders were that there would be no order as to costs between Lillian and John, Lillian would pay BAL's costs on a party-and-party basis up to 29 April 2022, and an indemnity basis from 30 April 2022. Additionally, there was no order as to costs in relation to BAL's notice claiming contribution or indemnity. This decision highlights the importance of clear and reasonable settlement offers and the consequences of rejecting such offers without adequate justification.

Orders