Legal Research
Cases
Vieira v O'Shea (No 2)

Vieira v O'Shea (No 2)

Link copied

Case Copied 4 May 2012 14 min read

Contents

On this page

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Vieira v O'Shea (No 2) [2012] NSWCA 121
Hearing dates: On the papers
Decision date: 04 May 2012
Before: Basten JA at 1;
Meagher JA at 1;
Handley AJA at 1
Decision:
(1) Revoke orders (4) and (5) made on 5 March 2012 relating to the costs of the trial and the appeal.
(2) Set aside the order made in the District Court on 4 May 2011 as to the costs of the trial as between the plaintiff and the first defendant.
(3) Order that the first defendant pay the plaintiff's costs of the plaintiff's claim against the first defendant in the District Court, assessed on the ordinary basis.
(4) Order that the first respondent pay the appellant's costs of the appeal, to be assessed on the ordinary basis up to and including 7 June 2011 and thereafter on an indemnity basis.
(5) There be no order as to the costs of this motion.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
COSTS - exceptions to the general rule that costs follow the event - offer of compromise - compliance with Uniform Civil Procedure Rules 2005 (NSW) - plaintiff's offer required the defendant to pay plaintiff's costs - whether offer was exclusive of costs - purpose of requiring offers under the Rules to be exclusive of costs - Uniform Civil Procedure Rules 2005 (NSW), r 20.26

COSTS - Calderbank offer made to several defendants jointly - defendants in different interests - whether unreasonable for one defendant to fail to accept offer
COSTS - appeal costs - exceptions to the general rule that costs follow the event - offer of compromise - whether appellant bettered his offer in respect of appeal - whether evidence as to the costs or likely costs of the trial required - level of uncertainty necessary to give rise to non-compliance with the UCPR
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 42.13A, 42.14, 51.47, 51.48; Pt 20, Div 4; Pt 42, Div 3
Cases Cited: Commonwealth of Australia v Gretton [2008] NSWCA 117
Dean v Stockland Property Management Pty Ltd (No 2) [2010] NSWCA 141
Grbavac v Hart [1997] 1 VR 154
Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] VSCA 298; 13 VR 435
Jones v Bradley (No 2) [2003] NSWCA 258
Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344
Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368
SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323
Category: Procedural and other rulings
Parties: Humberto…

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.

Keep reading for free

Create a free CaseChat account to read Vieira v O'Shea (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] NSWCA 121
Decision Date: 04 May 2012

CaseChat Overview and Summary

In Vieira v O'Shea (No 2), the New South Wales Court of Appeal considered appeals and cross-appeals concerning costs orders made in the District Court and by the Court of Appeal itself. The dispute involved a plaintiff and multiple defendants, with issues arising from offers of compromise made under the Uniform Civil Procedure Rules 2005 (NSW) and a *Calderbank* offer.

The primary legal issues before the Court of Appeal were whether a plaintiff's offer of compromise, which required the defendant to pay the plaintiff's costs, was compliant with Rule 20.26 of the Uniform Civil Procedure Rules 2005 (NSW), which contemplates offers exclusive of costs. The court also had to determine whether a *Calderbank* offer made jointly to defendants with differing interests was unreasonable for one defendant to reject, and whether an appellant had bettered their offer in respect of appeal costs, considering the uncertainty surrounding trial costs.

The Court of Appeal reasoned that Rule 20.26 of the Uniform Civil Procedure Rules 2005 (NSW) requires offers of compromise to be exclusive of costs, meaning an offer demanding payment of the offeror's costs is non-compliant. The court found that the plaintiff's offer was therefore invalid for the purposes of attracting the cost consequences under the Rules. Regarding the *Calderbank* offer, the court considered the differing interests of the defendants and the reasonableness of rejecting the offer. The court also addressed the appellant's entitlement to indemnity costs for the appeal, assessing whether the outcome of the appeal was more favourable than the offer made.

The Court of Appeal revoked earlier cost orders relating to the trial and the appeal, set aside a District Court cost order between the plaintiff and the first defendant, and made new orders. These new orders stipulated that the first defendant pay the plaintiff's costs of the plaintiff's claim against the first defendant on an ordinary basis. The first respondent was ordered to pay the appellant's costs of the appeal on an ordinary basis up to a specified date, and thereafter on an indemnity basis. There were no orders as to the costs of the motion.

Orders

Orders of the court

(1) Revoke orders (4) and (5) made on 5 March 2012 relating to the costs of the trial and the appeal.

(2) Set aside the order made in the District Court on 4 May 2011 as to the costs of the trial as between the plaintiff and the first defendant.

(3) Order that the first defendant pay the plaintiff's costs of the plaintiff's claim against the first defendant in the District Court, assessed on the ordinary basis.

(4) Order that the first respondent pay the appellant's costs of the appeal, to be assessed on the ordinary basis up to and including 7 June 2011 and thereafter on an indemnity basis.

(5) There be no order as to the costs of this motion.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Vieira v O'Shea (No 2) [2012] NSWCA 121
Hearing dates:	On the papers
Decision date:	04 May 2012
Before:	Basten JA at 1; Meagher JA at 1; Handley AJA at 1
Decision:	(1) Revoke orders (4) and (5) made on 5 March 2012 relating to the costs of the trial and the appeal. (2) Set aside the order made in the District Court on 4 May 2011 as to the costs of the trial as between the plaintiff and the first defendant. (3) Order that the first defendant pay the plaintiff's costs of the plaintiff's claim against the first defendant in the District Court, assessed on the ordinary basis. (4) Order that the first respondent pay the appellant's costs of the appeal, to be assessed on the ordinary basis up to and including 7 June 2011 and thereafter on an indemnity basis. (5) There be no order as to the costs of this motion. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	COSTS - exceptions to the general rule that costs follow the event - offer of compromise - compliance with Uniform Civil Procedure Rules 2005 (NSW) - plaintiff's offer required the defendant to pay plaintiff's costs - whether offer was exclusive of costs - purpose of requiring offers under the Rules to be exclusive of costs - Uniform Civil Procedure Rules 2005 (NSW), r 20.26 COSTS - Calderbank offer made to several defendants jointly - defendants in different interests - whether unreasonable for one defendant to fail to accept offer COSTS - appeal costs - exceptions to the general rule that costs follow the event - offer of compromise - whether appellant bettered his offer in respect of appeal - whether evidence as to the costs or likely costs of the trial required - level of uncertainty necessary to give rise to non-compliance with the UCPR
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 42.13A, 42.14, 51.47, 51.48; Pt 20, Div 4; Pt 42, Div 3
Cases Cited:	Commonwealth of Australia v Gretton [2008] NSWCA 117 Dean v Stockland Property Management Pty Ltd (No 2) [2010] NSWCA 141 Grbavac v Hart [1997] 1 VR 154 Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] VSCA 298; 13 VR 435 Jones v Bradley (No 2) [2003] NSWCA 258 Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344 Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368 SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323
Category:	Procedural and other rulings
Parties:	Humberto…