Walker Corporation Pty Ltd v Liu (No 2) - [2014] NSWSC 539

Supreme Court

New South Wales

Medium Neutral Citation: Walker Corporation Pty Ltd v Liu (No 2) [2014] NSWSC 539
Hearing dates: On written submissions
Decision date: 07 May 2014
Before: McCallum J
Decision:
Application for plaintiff to pay defendant's costs on an indemnity basis refused.

Catchwords: COSTS - Calderbank offer - whether unreasonable of plaintiff not to accept - whether costs should be assessed on an indemnity basis
Cases Cited: Evans Shire Council v Richardson (No 2) [2006] NSWCA 61
Leichhardt Municipal Council v Green [2004] NSWCA 341
Walker Corporation Pty Ltd v Liu [2013] NSWSC 1480
Category: Costs
Parties: Walker Corporation Pty Ltd (plaintiff)
Xiuyun Liu (defendant)
Representation: Counsel:
AJJ Renshaw (plaintiff)
G Carolan (defendant)
Solicitors:
Sparke Helmore (plaintiff)
MCK Lawyers (defendant)

File Number(s): 2012/140909
Publication restriction: None

Judgment

HER HONOUR: The plaintiff appealed from a decision of the Local Court sitting in its General Division. The appeal was dismissed and the plaintiff was ordered to pay the defendant's costs: Walker Corporation Pty Ltd v Liu [2013] NSWSC 1480. The only remaining matter to be determined in the proceedings is an application by the defendant for an order that those costs be assessed on an indemnity basis.

The proceedings in the Local Court arose out of a car accident. The plaintiff claimed $14,222.49 for repairs. The defendant admitted causing the accident and did not deny doing so negligently but denied the particulars of damage claimed by the plaintiff.

The Magistrate was not satisfied that the repairs were attributable to damage caused in the collision. His Honour determined that there should be a verdict for the plaintiff in a nominal amount. Judgment was entered for the plaintiff in the sum of $200. On the strength of an offer of compromise that had been made by the defendant before the hearing in the Local Court, his Honour ordered that the plaintiff pay the defendant's costs as agreed or assessed on the ordinary basis up until 30 March 2012 and thereafter on an indemnity basis.

The appeal was commenced on 3 May 2012. At 2.28pm on 11 October 2012, the day before the appeal was heard, the defendant offered to pay the sum of "$5,000 inclusive of costs and interest in full and final settlement of these proceedings". The offer was expressed to have been made in accordance with the principles stated in Calderbank v Calderbank and was open for acceptance until 5.30pm that day. By that time all of the evidence had been served and each party had provided a written outline of submissions.

The plaintiff's solicitor responded immediately (his email is also recorded as having been sent at 2.28pm on 11 October 2012) seeking clarification as to whether the defendant was offering to pay $5,000 and also to waive the costs order made against the plaintiff in the Local Court. A response sent at 3.37pm stated that the offer was only in relation to the appeal. What was proposed was that, if the offer were accepted, the appeal would…

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: [2014] NSWSC 539
Decision Date: 07 May 2014

CaseChat Overview and Summary

The case of Walker Corporation Pty Ltd v Liu (No 2) involved a dispute between the plaintiff, Walker Corporation Pty Ltd, and the defendant, Liu. The primary issue was whether the plaintiff's refusal to accept an offer from the defendant under a Calderbank offer was unreasonable and if the court should assess costs on an indemnity basis. The matter was heard in the Supreme Court of Queensland.

The central legal question the court had to address was whether the plaintiff's decision not to accept the defendant's Calderbank offer was unreasonable. Additionally, the court had to determine if the refusal to accept the offer justified an assessment of costs on an indemnity basis. The Calderbank offer was made in the context of ongoing litigation where the defendant proposed a settlement that the plaintiff declined.

In its reasoning, the court examined the circumstances surrounding the Calderbank offer and the plaintiff's refusal to accept it. The court found that the plaintiff's decision was not unreasonable given the nature of the offer and the context of the litigation. The court also considered whether the refusal warranted an indemnity costs order, ultimately deciding against it. The court held that the plaintiff's refusal to accept the defendant's offer was not unreasonable and did not justify an indemnity costs order.

Orders