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Vizovitis v Ryan (No 2)

Vizovitis v Ryan (No 2)

Case [2014] ACTSC 301 13 November 2014

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Vizovitis v Ryan (No.2)
Citation:	[2014] ACTSC 301
Hearing Date(s): Decision Date:	17 October 2014 13 November 2014
Before:	Master Harper
Category:	Costs
Catchwords:	COSTS – plaintiff withdrawing counts during trial – Calderbank offers by plaintiff to accept less than amount ultimately recovered – Calderbank offer including resolution of other issues between parties – principles to be applied – Calderbank offer effective – order that plaintiff recover costs on party-and-party basis to expiry of Calderbank offer and on solicitor-and-client basis thereafter
Legislation Cited:	Legal Practitioners Act 1970
Cases Cited:	Quirk v Bawden (1992) 112 ACTR 1 Cairns v Woolworths Ltd (2006) ACTSC 17 Becker v Queensland Investment Corporation and Bovis Lend Lease (No 2) [2009] ACTSC 147 Evans Shire Council v Richardson (No 2) [2006] NSWCA 61 at [26] Edwards Madigan Torzillo Briggs Pty Ltd v Gloria Stack & Ors [2003] NSWCA 302 at [22] Leichhardt Municipal Council v Green [2004] NSWCA 341 Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) [2005] VSCA 298 Colgate Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 Commonwealth of Australia v Gretton [2008] NSWCA 117 Calderbank v Calderbank [1975] 3 ALL ER 333
Parties:	Georgia Vizovitis (Plaintiff) Eunice Catherine Mary Ryan (Defendant)
Representation:	Counsel Mr SR Hausfeld (Plaintiff) In person (Defendant)
Solicitors Dibbs Barker (Plaintiff) Ryans Barristers and Solicitors (Defendant)
File Number(s):	SC 694 of 2004

THE COURT:

On 19 September 2014, for reasons which I published on that date, I ordered that judgment be entered for the plaintiff in this action in the sum of $53,250.00. I ordered that the defendant pay the plaintiff’s costs, but stayed that order for fourteen days in case a party decided to apply for a different costs order. I subsequently extended that stay until further order of the court.

On 23 September 2014 the solicitors for the plaintiff filed an application seeking an order that the defendant pay the plaintiff’s costs on a party-and-party basis up to 6 January 2009, and on a solicitor-and-own client basis from 7 January 2009. In the alternative the plaintiff sought orders in the same terms up to 1 August 2012 and from 2 August 2012.

On 16 October 2014 the defendant filed an application seeking an order that the plaintiff pay the defendant’s costs on a party-and-party basis up to 10 June 2010, or alternatively that there be no order as to costs up to that date, and an order that the defendant pay the plaintiff’s costs from 11 June 2010.

The parties relied on correspondence between the solicitors prior to trial. I heard the applications on 17 October 2014, and reserved my decision. The plaintiff was represented, as at trial, by Mr Hausfeld of counsel. The defendant, a solicitor, made submissions in person.

The defendant, as sole principal of a firm of solicitors, had acted for the plaintiff in two actions for damages for personal injury in this court, arising out of motor vehicle collisions in…

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 Vizovitis v Ryan (No 2)

Details

AGLC: Vizovitis v Ryan (No 2) [2014] ACTSC 301
Case: [2014] ACTSC 301
Decision Date: 13 November 2014

CaseChat Overview and Summary

The appeal was brought by the respondent against a decision awarding the appellant costs on a party-and-party basis for the period after the expiration of a Calderbank offer. The appellant had been awarded damages for the breach of a contract to purchase property. During the trial, the appellant had withdrawn certain counts and made a Calderbank offer, which included the resolution of other issues between the parties. The primary judge found that the offer was effective and awarded costs on a party-and-party basis for the period after the offer expired. The respondent argued that the Calderbank offer was not effective because it did not relate to the costs that would be awarded if the offer were accepted. The court found that the primary judge had applied the correct principles in finding the Calderbank offer effective. The court found that the Calderbank offer was not invalid because it included a resolution of other issues between the parties. The court found that the primary judge had not erred in finding that the Calderbank offer was effective and in awarding costs on a party-and-party basis for the period after the offer expired. The appeal was dismissed.

Orders