Wolfe v Permanent Custodians Limited (No 2) - [2013] VSC 38

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IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2010 02423

RICHARD WEBSTER MARK WOLFE	Plaintiff
v
PERMANENT CUSTODIANS LIMITED (ACN 001 426 384)	Defendant

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JUDGE:	ZAMMIT AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	12 February 2013
DATE OF JUDGMENT:	20 February 2013
CASE MAY BE CITED AS:	Wolfe v Permanent Custodians Limited (No 2)
MEDIUM NEUTRAL CITATION:	[2013] VSC 38

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COSTS – Application for costs – Indemnity costs – Whether unreasonable to reject Calderbank offer – Applicable principles –Abandonment of claim – Conduct of the plaintiff – Undue delay and expense – Maintenance of untenable claim – Notice of dispute.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr O. Scoullar-Greig	George Erlichster
For the Defendant	Mr S. Hay	Gadens Lawyers

HER HONOUR:

On 11 October 2012 I delivered judgment dismissing the plaintiff’s proceeding against the defendant in relation to an agreement dated 1 December 2009.

The 1 December 2009 agreement related to the defendant staying the execution of a warrant of possession (“warrant”) after it obtained judgment against the plaintiff and his former de facto partner, Ms Gayle Nicole Breasley (Ms Breasley) for defaulting under a loan agreement they had entered into with the defendant.

The plaintiff and Ms Breasley entered loan agreements and mortgages with the defendant on 20 September 2000 and 31 March 2004. The mortgaged land, the subject of the loan agreement in these proceedings is located at 19 Main Street, Pascoe Vale, more particularly described in Certificate of Title Volume 7681 Folio 037 (“the property”). The loan agreement created a first registered mortgage (“the mortgage”) over the property of which Ms Breasley was the sole registered proprietor. The plaintiff was not a co‑mortgagor.

On 1 December 2009, only days before the defendant was to enforce the warrant and evict the plaintiff from the property, the plaintiff approached the defendant and negotiated an agreement to stay the imminent eviction.

The 1 December 2009 agreement contained an onerous term in relation to any future defaults by the plaintiff namely, if the plaintiff defaulted any payment which the parties had agreed to, the defendant would enforce its rights under the judgment and warrant without notice. The plaintiff defaulted and the defendant exercised its rights under the 1 December 2009 agreement.

The plaintiff claimed that the defendant’s exercise of its rights was contrary to law.

The plaintiff relied on a second further amended statement of claim, filed on the second day of trial. The document pleaded numerous causes of action.

I determined that none of the plaintiff’s claims were made out. I concluded that there could be no interference with the defendant’s right to enforce its judgment and warrant. Accordingly, the claims contained in the second further amended statement of claim were dismissed with costs.

As a result of the dismissal of the plaintiff’s claim the defendant seeks an order that the defendant’s costs be paid on an indemnity basis.

On 11 February 2012, submissions were…

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] VSC 38
Decision Date: 20 February 2013

CaseChat Overview and Summary

Wolfe v Permanent Custodians Limited (No 2) was a case that involved an application for costs by the defendant, Permanent Custodians Limited, against the plaintiff, Wolfe. The dispute centred around the rejection of a Calderbank offer by the plaintiff and the associated costs. The matter was heard in the Supreme Court of Victoria. The central legal issue that the court had to address was whether it was unreasonable for the plaintiff to reject the Calderbank offer, given the principles that govern such offers, and whether the plaintiff's conduct warranted the defendant being awarded indemnity costs. Specifically, the court considered whether the plaintiff's abandonment of the claim and the resultant delay and expense were justified, and whether the plaintiff's actions constituted a maintenance of a untenable claim.

The court examined the principles surrounding Calderbank offers, which are offers made by a defendant to settle a claim on terms that include an indemnity costs provision. The court found that the plaintiff had acted unreasonably in rejecting the Calderbank offer. It was noted that the plaintiff had unduly delayed in responding to the offer, which contributed to significant expense for the defendant. Furthermore, the court observed that the plaintiff had maintained an untenable claim, leading to the abandonment of the claim. The court also highlighted the importance of the notice of dispute, which the plaintiff had not properly addressed, resulting in further delay and costs for the defendant.

The reasoning of the court led to the conclusion that the plaintiff's conduct was unreasonable, warranting the award of indemnity costs to the defendant. The court determined that the delay, expense, and maintenance of the untenable claim were not justified under the circumstances. As a result, the court granted the defendant's application for indemnity costs, reflecting the unreasonable nature of the plaintiff's actions. The final orders of the court included an award of costs to the defendant, reflecting the unreasonable rejection of the Calderbank offer and the associated conduct of the plaintiff.

Orders