Bird v Ford

The Calderbank offer 7In their submissions reference was made for the plaintiffs to Miwa Pty Ltd v Siantan Properties Pty Ltd (No 2) [2011] NSWCA 344, where it was observed that: "6 The appellant did not make an offer in accordance with the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), r 20.26, which would have carried with it a presumptive entitlement to indemnity costs if a judgment were obtained no less favourable than the terms of the offer: r 42.14. In Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 at 724 this Court (Kirby P, Mahoney JA and Samuels AJA) identified the objects of the Court rules then in force as including: "1. To encourage the saving of private costs and the avoidance of the inherent risks, delays and uncertainties of litigation by promoting early offers of compromise by defendants which amount to a realistic assessment of the plaintiff's real claim which can be placed before its opponent without risk that its 'bottom line' will be revealed to the court; 2. To save the public costs which are necessarily incurred in litigation which events demonstrate to have been unnecessary, having regard to an earlier (and, as found, reasonable) offer of compromise made by a plaintiff to a defendant; and 3. To indemnify the plaintiff who has made the offer of compromise, later found to have been reasonable, against the costs thereafter incurred. This is deemed appropriate because, from the time of the rejection or deemed rejection of the compromise offer, notionally the real cause and occasion of the litigation is the attitude adopted by the defendant which has rejected the compromise. In such circumstances, that party should ordinarily bear the costs of litigation." 7 These objects have been accepted as relevant to informal offers of compromise: Grbavac v Hart [1997] 1 VR 154 at 165 (Hayne JA). The informal offer must, in the present case, operate against the background of the Court's discretion with respect to the award of costs which is to be exercised, presumptively, in favour of an order that "the costs follow the event": Civil Procedure Act 2005 (NSW), s 98 and UCPR, r 42.1. One way to view an offer of compromise is to treat it as a basis for the court otherwise ordering; an alternative view is that it changes the proper characterisation of "the event" or outcome: Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd (No 2) [2008] NSWCA 85 at [13]. On the latter view, the party who fails to accept the offer and obtains no better result in the judgment is, from the date of the offer, treated as the unsuccessful party." 8At [8] the Court considered that in the case of a Calderbank offer, what had to be considered was whether: "(a) there was a genuine offer of compromise, and (b) it was unreasonable for the offeree not to accept it."

Was there a genuine offer of compromise? 9An offer must be assessed at the time that it is made, not with the benefit of hindsight (see Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368 at [33]). In Hobartville Stud Pty Ltd v Union Insurance Co Ltd (1991) 25 NSWLR 358, Giles J explained at 368: " Compromise connotes that a party gives something away. A plaintiff with a strong case, or a plaintiff with a firm belief in the strength of its case, is perfectly entitled to discount its claim by only a dollar, but it does not in any real sense give anything away, and I do not think that it can claim to have placed itself in a more favourable position in relation to costs unless it does so." 10In this case the offer of compromise was plainly genuine, given that not only were the defendants prepared to forego the costs which they had incurred to that point in defending the proceedings, notwithstanding their firm view as to the weakness of the plaintiffs' case, but they were also prepared to compromise the amount that the plaintiffs owed them under a judgment of the District Court, by some $10,000.

Was it unreasonable for the plaintiffs to have refused the offer? 11The relevant factors were identified in Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] VSCA 298; (2005) 13 VR 435 to include: "(a) the stage of the proceeding at which the offer was received; (b) the time allowed to the offeree to consider the offer; (c) the extent of the compromise offered; (d) the offeree's prospects of success, assessed as at the date of the offer; (e) the clarity with which the terms of the offer were expressed; (f) whether the offer foreshadowed an application for indemnity costs in the event of the offeree's rejecting it." 12In this case it must be accepted that the plaintiffs' prospects of success were slight. This offer was made at an early stage, where that may not have been readily apparent, for reasons which I will explain below. Further, that this offer was put on the basis that not only were the plaintiffs to execute a deed of release in favour of the defendants', but that their son was a necessary party to that deed. That conduct, in my view, precludes that an indemnity costs order being made in favour of the plaintiffs, as from the date of that offer. It was not an offer they could accept. That depended on someone else agreeing to give the defendants a release.

The offers of compromise 13The offers of compromise were made under Rule 20.26. It was not suggested that they were not valid. In accordance with Rule 20.26 (2), they provided that there would be a verdict for the defendants and the parties were to pay their own costs. They were each open for 28 days. Neither offer was accepted and under Rule 42.15, in the result, the defendants are entitled to an indemnity costs order in their favour, in relation to the costs incurred after the date of the offer, unless the Court orders otherwise. It is for the plaintiffs to establish a basis for any departure from the usual order as to such costs. 14The purpose of the compromise system established by the Rules is to encourage genuine compromise of proceedings, by specifying the conditions in which special costs orders may be made. Thus it is that consideration must be given to the question of whether either of the walk away offers made were genuine offers of compromise, reflecting a real compromise (see Townsend v Townsend (No. 2) [2001] NSWCA 145). 15It is settled that a walk away offer may involve real compromise. In Leichhardt Municipal Council v Green [2004] NSWCA 341 it was explained as to walk away offers such as were here made (at [36] - [38]): "36 Clearly the trial judge was proceeding on the basis that the offer of compromise was a valid and genuine offer of compromise, but one which should fail in the exercise of discretion. The Court of Appeal declined to interfere with this discretionary decision on costs, as no appellable error had been shown. Thus, it evidently concluded that no error of legal principle exists in holding that a 'walk-away' offer can in a particular case be a "genuine offer of compromise". There is no reason to doubt the correctness of that conclusion. It follows the approach of Dunford J should, if understood as stating a universal, non-discretionary rule to the contrary, not be followed. 37 In the circumstances of this case it is difficult to characterise the defendant's offer as merely a tactical step designed to secure the benefits which flow from whatever incentives there are. It should not, with respect, be seen as involving no realistic or genuine attempt to resolve the dispute by agreement, without going to the expense and time involved in court proceedings. Since the circumstances of the case are important, and in this case the Council's case was a strong one, it was appropriate for the offer to reflect the degree of optimism and confidence felt by the Council. In some cases a plaintiff's offer which allows only a small discount from 100% success on the claim can be genuine and realistic always depending upon the circumstances. The same is true of defendant's offers: in some cases it will not be necessary to offer any monetary proportion (however slight) of the plaintiff's claim. 38 That leads to the question was the offer in these circumstances a "genuine" offer of compromise?" 16The question of whether the offer was genuine, must be determined in the face of the circumstances confronting the parties at the time that each of the offers were made.

The second offer of compromise 17Curiously it was the plaintiffs' case that the while the first offer of compromise, made in March 2011 after the rejection of the Calderbank offer in which the defendants were prepared to waive $10,000 of the fees owed to them, was made too soon, the 2012 offer was made too late. In my view, this submission may not be accepted, particularly when it is considered that the second offer was made in August 2012 after the rejection of the two earlier offers, at a time when it was not only the plaintiffs who had incurred considerable additional costs, but when the real weakness of the plaintiffs' case must have been apparent. It is also relevant to consider that the defendants advised that to that point, they had incurred some $80,000 in costs, but would incur $200,000 if the matter went to the trial due to commence on 26 November 2012. In the circumstances, the risk which the plaintiffs were prepared to take in rejecting this final offer of compromise, was a considerable one. 18There are cases where a walk away offer will involve genuine compromise, because the case which the plaintiff advances is so plainly a weak one. In my view a party advancing such a case, who receives a number of offers of compromise under the Rules, all of which it rejects and none of which it betters at trial, will not easily be able to resist the indemnity costs order which the Rules contemplate will follow such a rejection. Incurring significant costs as the result of a fruitless pursuit of a weak case is not a proper basis for departing from the consequences which the Rules provide will follow from the rejection of such an offer. 19To adopt a different approach would fly in the face of the provisions of s 56 of the Civil Procedure Act 2005, which requires the Court to exercise its powers to facilitate the just, quick and cheap resolution of the real issues in the proceedings. It would also overlook the provisions of s 60, as to the proportionality of costs. 20In this case, by the time of the final offer made in August 2012, not only had the plaintiffs received and rejected two earlier offers of settlement, but the difficulty with the case they sought to advance had repeatedly been drawn to their attention. Given not only Mrs Bird's own affidavit evidence, but the documentary case advanced against them, which the affidavit evidence of Mr Ford and other witnesses called in the defendants' case revealed, the force of the defendants' position must have been apparent, by the time that this offer was made. At that time Mr Davidson's affidavit, which supported the defendants' case, had not been served. It is relevant, however, to consider that the plaintiffs' attitude was that there had been no negligence on his part. Mr Davidson was the senior counsel instructed by Mr Ford to appear for the plaintiffs in the Supreme Court proceedings which Mr Ford and Mr Davidson had repeatedly warned them against pursuing. That there was a very substantial risk that there was no real basis for taking a different view in relation to Mr Ford, than that which the plaintiffs took in relation to Mr Davidson, must have been by then appreciated. 21It is not to approach these considerations on the basis of hindsight, to conclude that by August 2012, the real weakness of their case, the strength of the defendants' case and the risks they were running in rejecting this second offer of compromise, so far as an indemnity costs order was concerned, must have been apparent to the plaintiffs. 22The offer then made was a genuine one in the circumstances, even though it was made on a walk away basis. 23In December 2010, the defendants had been prepared to waive $10,000 which the plaintiffs owed them, in order to achieve a settlement. Given the costs which they had incurred after the rejection of that offer and the further offer made in March 2011, that this aspect of the first offer was not repeated and instead a walk away offer was made in August 2012, was understandable. In the circumstances where the defendants were prepared to bear the $80,000 costs they had incurred to that point, there was a real compromise being offered. 24Given the very considerable costs which the defendants had by that point incurred, the real and apparent weakness of the plaintiffs' case and the significant costs which further pursuit of their case would inevitably involve the parties in, it must be concluded that the plaintiffs have not established any basis for a departure from the consequences which the Rules provide will follow their rejection of this offer. 25The rejection of this final offer was clearly unreasonable in the circumstances.

The first offer of compromise 26The real question arising to be determined, in my assessment, is whether or not an indemnity costs order should be made in favour of the defendants from the time of the rejection of their first offer of compromise made in March 2011. 27In the Calderbank offer, it was not only costs, but also $10,000, which the defendants were prepared to forego. This aspect of the first offer was not repeated in the first offer of compromise. 28At that time preparation of the case was not well advanced. That there was difficulty with the case which the plaintiffs wished to pursue against the defendants, may have been apparent. The real weakness of their case, may, however, not then have been able to be fully appreciated, given that this offer was made before the service of Mr Ford's affidavit. 29I have concluded in the circumstances, not without some hesitation, that the better view is that the defendants have established a basis for concluding that there should be a departure from the effect of the Rules, that there be an indemnity costs order in favour of the defendants, from the time of the rejection of this offer. In the circumstances, even though the plaintiffs had given instructions, that the offer then made was genuine, involving real compromise, may not have been readily apparent, particularly to those advising the plaintiffs. In coming to that view, I have taken account of the psychological illness from which Mrs Bird was suffering, a relevant matter to consider, it seems to me in all of the circumstances.

Order 30For these reasons, I order that: 1. The plaintiffs pay the defendants' costs on the ordinary basis to 11 August 2012 and thereafter on an indemnity basis. 2. The defendants pay the plaintiffs' costs of the motion for leave to tender the affidavit of Mr Davidson.

Amendments 30 April 2013 - typographical error in line 3 - the word 'plaintiffs' now changed to 'defendants' Amended paragraphs: [29] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 April 2013