HUNTER BUSINESS FINANCE PTY LTD v AUSTRALIAN COMMERCIAL & EQUIPMENT FINANCE PTY LTD & ORS

CASES CITED : Calderbank v Calderbank [1975] 3 All ER 333 Den Hoedt v Barwick [2006] WAS CA 196

Hunter Business Finance Pty Limited - Plaintiff Garry Francis Ennis - 3rd Defendant David John Flanagan - 4th Defendant PARTIES : Errol Sky - 5th Defendant Belfolex Pty Ltd - 6th Defendant Optimal Finance Pty Ltd - 7th Defendant Egras Pty Limited - 8th Defendant

COUNSEL : TJ Hancock - Pltf G Blake SC & H Stowe - Dfts

SOLICITORS : Sparke Helmore Lawyers - Pltf Mason Lawyers - Dfts

LOWER COURT MEDIUM NEUTRAL CITATION : [2007] NSWSC 1323

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

5022/2000 HUNTER BUSINESS FINANCE PTY LTD v AUSTRALIAN COMMERCIAL & EQUIPMENT FINANCE PTY LTD & ORS JUDGMENT 1 HIS HONOUR: These reasons deal with the costs of the Inquiry as to damages decided on 26 November 2007 - [2007] NSWSC 1323. Gzell J gave reasons for judgment on the principal issues on 19 March 2003 - [2003] NSWSC 122 - and made orders for the Inquiry on 3 April 2003. Order 4 referred disposition of the costs of the Inquiry. I am not addressing the general costs of the proceedings, which Gzell J reserved to himself by Order 6. I proceed on the reasons and findings of Gzell J and of myself, together with the affidavit of Ross Andrew Mason of 26 March 2008, read upon the costs application. Plaintiff's counsel contended that as the plaintiff has succeeded for more than nominal damages costs should follow the event. 2 The Inquiry and reference related to three classes of damages. Under Order 1 I assessed the damages which Gzell J decided should be awarded in his para [83] for breach of contract for removal of client files and for downloading and use of information on the HBF computer databases. I assessed damages at $10,000, and after further interest a total of $16,681.44. Under Order 2 I assessed damages referred to in para [88] for breach of contract in Mr Flanagan's placing mortgage transactions otherwise than through HBF, and non-regulated mortgage transactions placed outside HBF. I assessed damages at $661.56 and after interest a total of $1,370.46. Under Order 3 I adopted the parties' agreed figure of $16,500 damages, after interest a total of $16,848.08. 3 In its claim under Order 1 the plaintiff put forward and principally relied on a most elaborate body of evidence and reasoning assembled by Mr Crane, endeavouring to prove the quantum of damages by elaborate and indirect means relating to calculations by Mr Crane of the income derived by the defendants from dealings with clients. I did not adopt Mr Crane's method in any respect; see para [50] of my reasons. Mr Crane's evidence put forward a calculation of total brokerage in all transactions he saw as relevant at $1,345,395.08, and a range of loss from $554,981.81 on minimal assumptions to $1,160,037.48 on maximal assumptions. The amount awarded under Order 1 was a very small part indeed of the claim put forward. The plaintiff put forward an elaborate body of evidence and reasoning, which the defendants' counsel met in a very elaborate way. In its claims under Order 1 the plaintiff achieved no real success whatever; in the eye of reality the plaintiff failed. The principle on which I acted in assessing damages at $10,000 was a highly general one and bore no real relation to what had been advocated on behalf of the plaintiff, although in making that assessment I was informed of relevant matters by the plaintiff's case. Although the plaintiff did obtain an award of damages, a realistic appraisal must lead to the conclusion that overall the defendants succeeded under Order 1. 4 The claim under Order 2 was a very elaborate claim at earlier stages; see para [67] and following of my reasons. However in the course of the hearing before me and of submissions by the plaintiff's counsel it became relatively simple - see para [75] of my reasons - when the plaintiff relied on an admission in Mr Flanagan's Defence. My reasoning following this concession produced an assessment of $661.56. At an earlier stage there had been a relatively elaborate claim for a much larger sum. It would not in my opinion be appropriate that a claim which was successful only to this extent should carry an award of costs in the Supreme Court (if in any court). 5 The assessment of damages under Order 3 was agreed upon by the parties. 6 Quite apart from the circumstances I am still to discuss, it is clear in my opinion that the present case is one where the ordinary outcome indicated by UCPR 42.1 should not be followed but other orders should be made, and that the plaintiff should not be regarded as having achieved any success in substance, and should not be awarded costs. 7 The defendants seek far more than that I should withhold an award of costs from the plaintiff. Their arguments turn on offers of compromise made while the proceedings were pending. Mr Mason's affidavit produces copies of these offers. In December 2001 the six persons I speak of as defendants were not the only defendants; there were seven others who were represented by solicitors who did not act for the six defendants. See para [3] of my reasons. On 7 December 2001, in a written offer signed by the solicitors for all defendants, the defendants offered to compromise the plaintiff's claim. They said: "The 1st to 13th defendants offer to compromise the plaintiff's claim in the following manner: 1. Judgment for the plaintiff in the sum of fifty thousand dollars ($50,000) plus costs as agreed or assessed. This offer: (a) is made in accordance of Division (1) of Part 22 of the Supreme Court Rules; (b) may be accepted at any time up to and including 22 January 2007 after which it will expire.

This offer was not accepted. 8 The plaintiff's claims went to hearing before Gzell J in 2003, well over a year after expiry of the offer. On the third day the other seven defendants made some agreement resolving the plaintiff's claim and took no further part in the proceedings. Mr Mason is not aware of the terms of that arrangement. 9 It is for consideration whether the judgment on the claims concerned will be less favourable to the plaintiff than the first offer made on 7 December 2001; attracting the operation of UCPR 42.15(1). The plaintiff's counsel contended to the effect that as there were, as of December 2001, claims against other defendants as well the judgment to be entered on my assessments is not "judgment on the claim concerned" to which the offer related; it is judgment only on part of the claim concerned in the offer, and other claims concerned were resolved by agreement. Underlying this is that it is not known whether the plaintiff recovered any remedy of value against the other seven defendants. So far as has been shown the plaintiff did not recover any judgment against those other defendants on the claims concerned in the offer; what is known to the continuing defendants is that on 19 February 2003 Short Minutes to which the continuing defendants were not party were handed to Gzell J who noted the matters contained in the document and made "orders in terms of the Short Minutes". It is possible that the plaintiff obtained overall a better result than the offer made in December 2001; this does not appear and the plaintiff makes no disclosure. It does not appear from the material before me and I am not prepared to assume that the plaintiff obtained an order or judgment against those other seven defendants. Literally then as the judgment which will be entered on my certificate is less than $50,000, UCPR 42.15(15) is fulfilled; judgment on the claim concerned is less favourable than the offer. So far as appears, whatever remedy the plaintiff obtained against the other defendants, if the plaintiff obtained any remedy against them, was obtained in some way other than by judgment. I cannot act on that basis; that would evade the substance of the rules. As the continuing defendants have not shown that overall the remedies which the plaintiff has recovered were less favourable than the offer made in December 2001, I should not in my opinion apply UCPR 42.15 on the basis of that offer. 10 The plaintiff's counsel also contended that as the offer was a joint offer made by all defendants and was not according to its terms severable among the claims made against particular defendants, it was not an offer by "the defendant" within the meaning of UCPR 42.15. I do not accept this submission; the offer was made by the continuing defendants, no less so because it was also made by other defendants. 11 Plaintiff's counsel contended that whether or not it was reasonable for the plaintiff to reject the offer of compromise is relevant to the general discretion on costs. This submission was made, in my understanding, in relation to all offers and their rejection. In support of this counsel referred to observations in Den Hoedt v Barwick [2006] WAS CA 196 at [113] (Buss JA) on the difficulty presented to a plaintiff by a joint offer of compromise made by defendants whom the plaintiff did not allege to be joint tortfeasors; against whom the plaintiff's claims were not uniform, so the offer did not give the recipient the opportunity of settling their claim against some defendants and going on against others. I do not have material before me which gives context to any consideration whether or not it was reasonable for the plaintiff, in December 2001, to wish to settle against one group of defendants while continuing against another. 12 On 9 May 2003, after Gzell J had ordered the Inquiry, the continuing defendants made two offers of compromise. These offers were said to be made in accordance with Div. 1 Pt 22 of the Supreme Court Rules and also with Calderbank v Calderbank [1975] 3 All ER 333, and it was said that they might be relied on on the issue of costs. They were open for about five weeks and related solely to the assessment of damages. According to their terms the offers were not intended to affect other claims for costs, which were to remain open to debate; nor were they to affect rights of appeal. In the first of these offers various sums which totalled $12,000 were offered for subheadings of the claims in Order 1, and amounts totalling $13,000 were offered for the claims in Order 2. There was no proposal to pay interest; if this offer had been accepted the plaintiff would have had no prospect in reality of going on to obtain an order for interest. The second offer put forward sums totalling $12,000 in respect of various parts of the damages under Order 3. Neither offer was accepted. 13 As better results than the outcome actually achieved were available to the plaintiff twice at earlier stages in the litigation, and the second opportunity began about a month after the order for the Inquiry was made, there are in my opinion strong discretionary grounds in support of ordering the plaintiff to pay the defendant's costs of the Inquiry. I will not act on these grounds however without addressing the relevant legislation. 14 On a retrospective view, the plaintiff was offered $12,000 and no interest to settle claim 1 and recovered $16,681.44 including interest. The plaintiff was offered $13,000 to settle Claim 2 and recovered $1,370.46. The plaintiff was offered $12,000 to settle Claim 3 and recovered $16,848.08. The offers overall totalled $37,000 and the amounts I assessed including interest total $34,899.98. The outcome achieved by the plaintiff was a little worse for it than the outcome available to it in May 2003 under the offers. 15 Although different sums were specified for different parts of the claims, the plaintiff was not offered opportunities to take some sums for some part of its claims and reject others; each of these two offers could be accepted in whole or refused in whole. In detail, the plaintiff did worse than the offers totalling $25,000.00 made to it in respect of Orders 1 and 2, but better than the offer made to it in respect of Order 3. In the application of UCPR 42.15 the defendants can obtain the benefit of that rule only in respect of the offer dealing with Order 1 and Order2. 16 If an offer complied with Pt 22 r 1(a) of the Supreme Court Rules, in force in May 2003, it is taken to have been made under UCPR 42.15, under the "corresponding provision" reference in Civil Procedure Act schd. 6 cl 10. In my opinion the effect of UCPR 42.15(2) is that the defendants are entitled to indemnity costs in respect of their claims under Orders 1 and 2 from 9 May 2003 onwards. However they do not have such an entitlement with respect to their claim under Order 3. 17 In my opinion there are no facts which displace the ordinary operation of UCPR 42.15 in relation to the offer dated 9 May 2003 which proposed settlement of the matters referred in Orders 1 and 2. The plaintiff's substantial failure and recovery of relatively minor sums on these claims leads me to the view that the defendants should recover a general order for costs of the Inquiry under Orders 1 and 2. The costs under that order should be assessed on the indemnity basis from the date of the offer, 9 May 2003. Under Order 3 the plaintiff recovered very little more by agreement than had been proposed in the offer of 9 May 2003 which specifically referred to that claim. The sum recovered was small and is not the sort of amount that should attract costs. The same observation can be made even more forcefully of the excess over the amount offered. Neither party should recover costs; the availability of the offer of May 2003, and the small difference between the amount offered and the outcome, are significant parts of the basis of this view. In my judgment the appropriate order is that each party should pay its, his or their own costs with respect to the reference under Order 3. 18 My Orders are:

(1) Order that the plaintiff is to pay the costs of those defendants who participated in the Inquiry of the claims referred to in Orders 1 and 2 of the Orders of 3 April 2003 and those costs are to be assessed on the indemnity basis.

(2) Order that each party pay its, his or their own costs of the claim referred to in Order 3 of the Orders of 3 April 2003.

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