Willis v Crosland [No 2] - [2021] VSCA 360

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2021 0024

ANNE WILLIS	Appellant
v
VANESSA LOUISE CROSLAND [No 2]	Respondent

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JUDGES:	SIFRIS, WALKER JJA and MACAULAY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	17 December 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 360
JUDGMENT APPEALED FROM:	[2020] VCC 1964; [2021] VCC 39 (Judge Macnamara)

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COSTS – Costs of application for leave to appeal and appeal and notice of contention – Calderbank offer by successful appellant not accepted by respondent – Not unreasonable for respondent not to accept offer – Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority [No 2] (2005) 13 VR 435 applied.

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WRITTEN SUBMISSIONS:	Counsel	Solicitors
For the Appellant	Mr P Solomon QC with Mr J McComish	DST Legal
For the Respondent	Mr J Twigg QC with Mr W Newland	Ferdinand Zito & Associates

SIFRIS JA
WALKER JA
MACAULAY AJA:

On 23 November 2021, we published reasons for our decision to grant leave to appeal and allow the appeal.[1] As a consequence, the appellant is entitled to repayment of the deposit paid to the respondent in the sum of $185,000.
[1]Willis v Crosland [2021] VSCA 320 (‘principal judgment’). The relevant background to the appeal and the reasons for our decision are set out in the principal judgment. We will assume familiarity with the principal judgment and defined terms bear the same meaning.

We invited the parties to endeavour to agree on a form of order dealing with all remaining matters, including costs, in accordance with the principal judgment and notify the Court of any agreement. To the extent that the parties were unable to agree, the parties were required to file submissions dealing with those matters.

The parties have failed to agree on the costs of the application for leave to appeal, the appeal and the notice of contention. There is no dispute about the costs of the trial or the appellant’s proposed order for interest. The respondent seeks an indemnity certificate under s 4 of the Appeal Costs Act 1998 with respect to the costs of the appeal. Both parties filed written submissions.

Costs in the Court of Appeal

By reference to the principles stated in Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority [No 2],[2] the appellant submitted that she is entitled to costs on an indemnity basis as the result of a Calderbank offer.
[2](2005) 13 VR 435, 441 [23] (Warren CJ, Maxwell P and Harper AJA); [2005] VSCA 298.

By letter dated 11 March 2021, the appellant made an offer to the effect that the respondent refund the amount of $185,000 and pay $80,000 by way of costs of both the trial and the appeal. The offer was open until 1 April 2021. The appellant submitted as follows:

The relevant principles are as stated in Hazeldene’s Chicken Farm. The critical question is ‘whether the rejection of the offer was unreasonable in the circumstances’. The court…

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 Willis v Crosland [No 2]

Details

AGLC: Willis v Crosland [No 2] [2021] VSCA 360
Case: [2021] VSCA 360
Decision Date: 17 December 2021

CaseChat Overview and Summary

The case of Willis v Crosland [No 2] involved the appellant, Willis, and the respondent, Crosland, in a dispute regarding the costs of an application for leave to appeal and the subsequent appeal itself. The matter was heard in the Supreme Court of Victoria. The appellant had made a successful appeal and subsequently made a Calderbank offer to the respondent. This offer included terms for the payment of costs, but the respondent declined the offer and instead chose to contest the matter further.

The primary legal issue before the court was whether it was unreasonable for the respondent to reject the Calderbank offer made by the appellant. The court needed to determine whether the respondent's decision to reject the offer was justifiable given the circumstances of the case. This decision hinged on assessing the merits of the offer and the respondent's reasons for rejecting it, as well as considering the principles set out in previous case law, particularly Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority [No 2].

The court concluded that it was not unreasonable for the respondent to decline the appellant’s Calderbank offer. The court found that the offer did not sufficiently address the respondent's concerns and that the respondent had legitimate reasons for rejecting it. The court applied the principles from Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority [No 2], which held that a respondent is not necessarily unreasonable for rejecting a Calderbank offer if there are justifiable grounds for doing so. Consequently, the court ruled that the respondent's decision to reject the offer was reasonable and did not warrant penalising the respondent for the costs associated with the appeal.

Orders