Alceon Group Pty Ltd v Rose

Judgment (5 paragraphs)

[1]

Solicitors: Kemp Strang (Plaintiff/First Cross-Defendant/Second Cross-Defendant) Russells (First Defendant/Second Cross-Defendant) ClarkeKann Lawyers (Second Defendant/First Cross-Claimant) File Number(s): 2013/206976

[2]

Judgment

HER HONOUR: On 3 July 2015 I gave judgment in proceedings brought by the plaintiff (Alceon Group Pty Ltd) ("Alceon") against Mr Peter Francis Rose and Mrs Betty Nola Rose: Alceon Group Pty Ltd v Rose [2015] NSWSC 868.
The proceedings were commenced by a Statement of Claim in which Alceon claimed against Mr and Mrs Rose judgment in the sum of $2 million, and possession of land which was subject to a mortgage in favour of Alceon to secure the debts of Quadwest Developments Pty Ltd.
Although, it seems, initially Mr and Mrs Rose filed a joint defence to the claim, as the case proceeded to trial, they relied on separate defences. Mr Rose raised a number of defences, all of which failed. Mrs Rose pleaded the same defences; she adduced no evidence and addressed no argument in support of them, and, in her case, they also failed. However, Mrs Rose pleaded, additionally, a defence under the principles stated in Garcia v National Australia Bank Ltd [1998] HCA 48; 194 CLR 395, and a defence under the Contracts Review Act 1980 (NSW). Those defences succeeded. Accordingly, the following orders were made: "1 Judgment for the plaintiff against the first defendant in the sum of $2,275,397.25 plus $328.76 per day from 18 July 2015 until the date of this judgment. 2 Judgment for the plaintiff on the cross-claim filed by the first defendant. 3 A declaration that the mortgage dated 3 August 2011 registered no. AG466305 (Mortgage) has full force and effect as against the interest of the first defendant in the [property at Clontarf] in respect of all moneys outstanding under this judgment. … 8 A declaration that the Mortgage and the guarantee and indemnity dated 3 August 2011 given by the first and second defendants to the plaintiff (Guarantee) are void as against the second defendant. 9 An order setting aside the Guarantee as against the second defendant without prejudice to the plaintiff's rights against the first defendant. 10 An order setting aside the Mortgage as against the interest of the second defendant without prejudice to the plaintiff's rights against the first defendant. 11 Judgment for the second defendant on the plaintiff's statement of claim. …"

Mr Rose

UCPR 20.26 is relevantly in the following terms: "20.26 Making of offer (1) In any proceedings, any party may, by notice in writing, make an offer to any other party to compromise any claim in the proceedings, either in whole or in part, on specified terms. (2) An offer under this rule: (a) must identify: (i) the claim or part of the claim to which it relates, and (ii) the proposed orders for disposal of the claim or part of the claim, including, if a monetary judgment is proposed, the amount of that monetary judgment, and … (4) … (b) in the event that rule 42.14 applies to the proceedings, the offeree will seek an order of the court under rule 42.14(2). …" UCPR 42.12 relevantly provides: "42.14 Where offer not accepted and judgment no less favourable to plaintiff (1) This rule applies if the offer is made by the plaintiff, but not accepted by the defendant, and the plaintiff obtains an order or judgment on the claim no less favourable to the plaintiff than the terms of the offer. (2) Unless the court orders otherwise, the plaintiff is entitled to an order against the defendant for the plaintiff's costs in respect of the claim: (a) assessed on the ordinary basis up to the time from which those costs are to be assessed on an indemnity basis under paragraph (b), and (b) assessed on an indemnity basis: (i) if the offer was made before the first day of the trial, as from the beginning of the day following the day on which the offer was made, and (ii) if the offer was made on or after the first day of the trial, as from 11 am on the day following the day on which the offer was made."
The Offer of Compromise was made jointly to Mr and Mrs Rose. It was not, in its terms, capable of acceptance by Mr Rose alone. That is especially so, since one of the orders sought in the Statement of Claim was for possession of jointly owned real estate.
It may true that Mr Rose could have made a counter-offer, accepting the offer so far as it related to him, but that is not the same as acceptance of an Offer of Compromise.
Further, it was apparent to Alceon, at least from 4 April 2014, when Mrs Rose's Amended Defence was filed raising the Garcia and Contracts Review Act defences, that she proposed to defend the claim on a different basis to that advanced by Mr Rose. That, if nothing else, ought to have alerted Alceon to the need to seek to deal with the defendants separately.
In any event, Alceon has not achieved a result more favourable than its Offer. The two paragraphs of the Offer are not expressed to be disjunctive; they are most readily read as conjunctive or cumulative - that is, seeking both judgment in the sum of $2 million, and possession of the property, including that part of the property of which Mrs Rose is the owner and as to which Alceon is not entitled.
Alceon has not justified its claim for an order for indemnity costs against Mr Rose.
The order I propose to make in respect of Mr Rose is that he pay the costs of Alceon assessed on the ordinary basis.

At a glance

Court

Decision date

Before

Source

Judgment (5 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (2)