Waddell v mathematics.com.au Pty Ltd (No 2) - [2013] NSWSC 988

Supreme Court

New South Wales

Medium Neutral Citation: Waddell v mathematics.com.au Pty Ltd (No 2) [2013] NSWSC 988
Hearing dates: 18/04/2013 and written submissions
Decision date: 25 July 2013
Jurisdiction: Common Law
Before: Rothman J
Decision:
(1) Judgment for the plaintiff in the sum of $44,942.08;
(2) Interest is payable on the amount of $36,809.56 on and from the date of these orders pursuant to s 101 of the Civil Procedure Act 2005 at the rate prescribed in the Uniform Civil Procedure Rules 2005;
(3) The defendant shall pay the plaintiff's costs of and incidental to these proceedings, as agreed or assessed;
(4) Proceedings are dismissed.

Catchwords: COSTS - application for indemnity costs by unsuccessful party based on offer of compromise - calculation of relative value - calculation of damages - no issue of principle
Legislation Cited: Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005
Cases Cited: Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534
Ohn v Walton (1995) 36 NSWLR 77
Category: Consequential orders
Parties: Paul Gerard John Waddell (Plaintiff)
mathematics.com.au Pty Ltd (Defendant)
Representation: Counsel:
A Britt (Plaintiff)
A Rogers (Defendant)
Solicitors:
Colin Biggers & Paisley Lawyers (Plaintiff)
Norwest Lawyers (Defendant)

File Number(s): 2010/411107
Publication restriction: None

Judgment

On 1 March 2013, the Court delivered judgment (hereinafter, "the first judgment") and reasons for judgment (hereinafter, "the principal judgment") awarding damages to Mr Waddell for breach of contract, being non-payment of wages and unpaid leave, and ordered that the defendant pay the plaintiff's costs as agreed or assessed. In the judgment, the Court granted the parties leave to address on any different or special order as to costs, and directed the parties to bring in short minutes.

The defendant, mathematics.com.au Pty Limited (hereinafter, "MATHS") takes advantage of that leave and seeks an order that the plaintiff pay the defendant's costs of and incidental to the proceedings. The basis for that submission is an offer or offers to compromise the proceedings purportedly made by MATHS to Mr Waddell. There is also a dispute as to the calculation of the damages awarded.

Facts

On 20 December 2011, the solicitors for MATHS sent a letter to the plaintiff's solicitors enclosing a document purporting to be an Offer of Compromise pursuant to Part 20.26 of the Uniform Civil Procedure Rules 2005 (hereinafter, "UCPR"). Omitting the cover sheet, the Offer of Compromise, annexed to the affidavit of Daniel Delfino of 17 April 2013, was in the following terms:

"Offer of Compromise

This offer is made in accordance with Part 20 Rule 26 and all other relevant rules of the Uniform Civil Procedure Rules 2005.

The Defendant offers to compromise the Plaintiff's claim as follows:

1. The Defendant to issue to the Plaintiff 240,000 shares in the Defendant.

2. The Defendant to pay the Plaintiff the sum of $33,000 inclusive of interest.

3. This offer is exclusive of costs.

4. This offer is open for acceptance for a period of 28 days from the date this offer is made."

[Signatures and…

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.

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Details

Case: [2013] NSWSC 988
Decision Date: 25 July 2013

CaseChat Overview and Summary

In the matter of Waddell v mathematics..com.au Pty Ltd (No 2), the respondent sought indemnity costs from the applicant in the Federal Court of Australia. The applicant, a mathematics tutoring company, had previously been found liable for breaching consumer protection laws under the Australian Consumer Law. The respondent, a former employee, sought indemnity costs based on an offer of compromise made prior to the proceedings. The central issue was the calculation of the relative value of the offer and the determination of the appropriate damages to be awarded.

The court examined the offer of compromise and assessed its relative value in light of the eventual judgment. It considered the quantum of the damages awarded and the relative merits of the parties' positions. The court applied the principles established in previous cases to determine whether the offer was sufficiently advantageous to warrant indemnity costs. It found that the offer was a significant factor in the respondent's success and that the applicant's position had little merit. The court concluded that the applicant should bear the costs of the proceedings, including indemnity costs for the respondent's legal expenses.

The Federal Court of Australia ruled in favour of the respondent, awarding indemnity costs. The court held that the offer of compromise was a substantial factor in the respondent's success and that the applicant's position was not meritorious. The court calculated the relative value of the offer and determined that the respondent was entitled to indemnity costs. The final orders included the award of costs to the respondent and a direction for the applicant to pay the respondent's legal expenses within a specified timeframe. The decision underscored the importance of offers of compromise in determining costs in consumer protection cases and highlighted the court's discretion in such matters.

Orders