First Plaintiff v Defendant [2024] VSC 419 | Case summary

Supreme Court of Victoria|2024-07-04|Before: Garde J

For the reasons given, I am on balance not persuaded that AIG has discharged the onus of persuasion and shown that Sayers acted unreasonably in failing to accept the settlement offer.
The two main factors in arriving at this conclusion are:

(i) the amount of the offer which could not be said to be of such magnitude as to render it unreasonable for Sayers to refuse the offer, particularly having regard to the late stage of the proceeding when the offer was made, the accrual of interest by that time if the claim was successful, and the incurrence of costs and pendency of a trial which ultimately did not exceed two days; and

(ii) the statement of AIG's position in the settlement letter which did not clearly state reasons why Sayers should accept the offer. The statements made were in some respects confusing, and did not articulate in any detail the basis on which AIG was ultimately successful.

[1] Sayers Property Holdings Pty Ltd v AIG Australia Ltd [2024] VSC 139, ('reasons for decision'), [2].

[3] Referring to Calderbank v Calderbank [1976] Fam 93.

[4] As to the need to articulate reasons in a Calderbank offer explaining why the offeree should accept the offer, see Dukemaster Pty Ltd v Bluehive Pty Ltd [2003] FCAFC 1, 3 [8]-[10] (Sundberg and Emmett JJ); Nutrient Water Pty Ltd v BACO Pty Ltd [2010] FCA 304, 10 [33]-[34] (Kenny J); Mediterranean Olives Financial Pty Ltd v Lederberger [2011] VSC 333, [10] (Pagone J); Keays v JP Morgan Administrative Services Australia Ltd (No 2) [2011] FCA 547, 7-8 [19]-[22] (Buchanan J); Strategic Property Reservoir Pty Ltd v Condec Pty Ltd (No 2) [2013] VSC 29, 5-6 [15] (Almond J); ROJ Property Group Pty Ltd v Eventpower Property Pty Ltd (Costs) [2023] VSC 268, 5-6 [12]; 23 [51] (Derham AsJ);]; LexisNexis, Civil Procedure Victoria (online at 16 July 2024) Chapter I: Supreme Court (General Civil Procedure) Rules 2015, [I 26.01.65].

[5] The definitions used in this extract of the settlement letter differ in some respects from the definitions used within this ruling.

[6] See Secretary to the Department of Transport v Provan's Timber Pty Ltd (No 2) [2020] VSCA 258, 8 [25] (Tate, Kyrou and McLeish JJA); Foster v Galea (No 2) [2008] VSC 331, 3-4 [9].

[7] Citing Assets China Pty Ltd v Eastern Blue Pty Ltd (Costs) [2020] VSC 786, 8 [30] (Ierodiaconou AsJ); Hazeldene's Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 407, 441 [23] (Warren CJ, Maxwell P, Harper AJA) ('Hazeldene's Chicken Farm').

[8] Citing Hazeldene's Chicken Farm, 441 [24].

[9] Hazeldene's Chicken Farm, 442 [25].

[10] [2011] VSCA 398, 4 [17] (Buchanan;Tate JJA; Sifris AJA).

[11] Reasons for decision [2], [127], [129], [130], [137].

[12] For a case where the analysis of the legal position set out in the Calderbank offer differed from the analysis giving rise to success, see Morris Finance Ltd v Commonwealth Bank of Australia [2017] VSC 348, 8 [25] (Derham AsJ).

Court (General Civil Procedure) Rules 2015

First Plaintiff v Defendant

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