Plaintiffs v Defendants

COSTS - Indemnity costs - Calderbank offer from plaintiffs to unsuccessful defendants - Offer not accepted - Whether indemnity costs should be awarded - Offer made to multiple defendants on a joint and several basis - Whether offer was capable of acceptance - Whether a genuine offer to compromise - Whether non-acceptance of offer was unreasonable - Hazeldene's Chicken Farm Pty Ltd v Victorian Workcover Authority [2005] VSCA 298; (2005) 13 VR 435 applied - Indemnity costs awarded.

PRACTICE AND PROCEDURE - Security for costs - Plaintiff successful at trial - Appeal foreshadowed - Application for discharge of security - Huon Shipping and Logging Co Ltd v South British Insurance Co Ltd [1923] 23 VLR 216 applied - Application granted.

For the Plaintiffs and Eighth, Ninth and Tenth Defendants

No appearance on behalf of the First, Second or Third Defendants

1 On 20 June 2013, the Court published reasons for judgment in this proceeding. The Court found for the plaintiffs on their claims of misleading and deceptive conduct and accessorial liability against the fourth to seventh defendants (collectively "the defendants"). The Court held that there should be an award of damages in favour of the first plaintiff in the amount of $7 million plus the interest that would have been earned on that amount, had it remained in the account operated by the second plaintiff as nominee of the Texxcon-Austexx joint venture ("the JV account") until

30 September 2009. The interest component has been quantified in the amount of $200,021.51.

2 On 26 June 2013, the Court heard argument on the form of orders that the Court should make, including the appropriate costs order. In the course of argument, a number of issues were raised for the Court's determination.

The first issue: The amount of statutory interest

3 The first plaintiff is entitled to interest ("the statutory interest") on the judgment debt pursuant to s 60 of the Supreme Court Act 1986 (Vic) ("the Supreme Court Act").

The amount of statutory interest up to and including 26 June 2013[1] is $1,936,608.52, based on the rate of 10.5 per cent fixed under s 2 of the Penalty Interest Rates Act 1983 (Vic) ("the Penalty Interest Rates Act"). Mr Murdoch QC, who appeared for the fourth and fifth defendants, argued that the interest which may be awarded by virtue of s 60 of the Supreme Court Act is to be calculated at a rate "not exceeding" the rate for the time being fixed under s 2 of the Penalty Interest Rates Act

("the penalty rate"). Mr Murdoch QC submitted that the appropriate interest rate should be 7.91 per cent, not 10.5 per cent. The interest rate of 7.91 per cent was based on the applicable bank rates during September 2008 on the monies in the JV account.

4 The rate of interest that should be applied is a matter for the discretion of the Court, subject to the proviso that it cannot exceed the penalty rate. As a general rule, the starting point is the penalty rate, which has a penalty component over and above the compensatory function of the award of interest.[2] It is relevant for the Court, when fixing the appropriate rate under s 60 of the Supreme Court Act, to bear in mind the objectives of the statutory interest entitlement: first, to compensate a judgment creditor for the loss of use of the funds; secondly, to deter judgment debtors from delaying proceedings, thereby having the use of the funds for a longer period; and finally, to encourage defendants to make realistic assessments of their liability in a case and to take bona fide steps to compromise the claim.[3]

5 I am not persuaded that there are mitigatory factors that warrant a reduction in the penalty component. The defendants were, from an early stage, in a position to assess the merits of the claims made against them and to attempt to compromise them. They have at all times been represented by lawyers and could not have been under any misapprehension about paying a penalty interest component, if unsuccessful at trial.[4] The statutory interest should be awarded at the penalty rate.

The second issue: Proportionate liability for misleading and deceptive conduct

6 The defendants contended that they are concurrent wrongdoers for the purposes of Part VIA of the Trade Practices Act 1974 (Cth) ("the TPA") and the Court should give judgment against each defendant for not more than the amount reflecting that defendant's proportion of the damages award that the Court considers just, having regard to the extent of that defendant's responsibility for the damage or loss.[5]

7 The fourth and fifth defendants relied on the provisions of Part VIA of the TPA in their defences and the Court found that they were to be regarded as having equal responsibility with the sixth and seventh defendants for the loss and damage claimed by the plaintiffs.[6] In light of that finding, the defendants have contended that they are each proportionally liable for 25 per cent of the damages award and that there should be judgment against each of them for no more than that amount.

8 Mr Burnside QC for the plaintiffs referred to, and relied on, s 87CC of the TPA, which had been pleaded by way of reply to the fourth and fifth defendants' reliance on Part VIA of the TPA. Section 87CC operates to prevent apportionment of the liability of a concurrent wrongdoer in proceedings involving an apportionable claim if the concurrent wrongdoer intended to cause, or fraudulently caused, the economic loss that is the subject of the claim. However, whilst pleaded, no reliance was placed by the plaintiffs on s 87CC in closing submissions, nor was the case for the plaintiffs put on the basis of fraud or deceit and no findings were made by the Court to the effect that the defendants intentionally or fraudulently caused the economic loss.

In the circumstances, s 87CC of the TPA does not apply.

9 The plaintiffs argued further that the claims are not apportionable because the accessorial claim against the fourth and fifth defendants under s 75B of the TPA was not the same as the claim against the sixth and seventh defendants under s 52 of the TPA. Section 87CB in Part VIA of the TPA provides as follows:

(1) This Part applies to a claim (an apportionable claim) if the claim is a claim for damages made under section 82 for:

• (a) economic loss; or
• (b) damage to property;

caused by conduct that was done in a contravention of section 52.

(2) For the purposes of this Part, there is a single apportionable claim in proceedings in respect of the same loss or damage even if the claim for the loss or damage is based on more than one cause of action (whether or not of the same or a different kind).

(3) In this Part, a concurrent wrongdoer, in relation to a claim, is a person who is one of 2 or more persons whose acts or omissions (or act or omission) caused, independently of each other or jointly, the damage or loss that is the subject of the claim.

(4) For the purposes of this Part, apportionable claims are limited to those claims specified in subsection (1).

(5) For the purposes of this Part, it does not matter that a concurrent wrongdoer is insolvent, is being wound up or has ceased to exist or died.

10 No authorities were cited to the Court on whether a claim for misleading and deceptive conduct and a claim for aiding and abetting that conduct, in circumstances such as the present case, may be considered together for the purposes of apportionment under Part VIA of the TPA. I consider however, that the defendants are concurrent wrongdoers in relation to a single apportionable claim in respect of the damages awarded to the first plaintiff under s 82 of the TPA, even though the claims against the fourth and fifth defendants relied on s 75B, and the claims against the sixth and seventh defendants were brought under s 52 of the TPA. The only function of s 75B is to define "a person involved in a contravention of" s 52, and the section operates to apply s 82 to persons who were involved in a contravention

of s 52 by another person. A claim based on s 75B therefore, is a claim within the language of s 87CB.

11 The respective claims against the defendants constitute a single apportionable claim within the meaning of s 87CB in respect of the loss and damage suffered by the first plaintiff in relation to which the defendants have equal responsibility. Accordingly, judgment should be entered against each of them in an amount equal to 25 per cent of the damages award.

12 On 14 March 2013, the plaintiffs sent a Calderbank letter[7] to the defendants.

In a genuine attempt to settle the dispute, and on the basis that your respective clients will, if unsuccessful, be jointly and severally liable for the full amount of the claim - $14 million - plus interest, plus party/party costs assumed to be $1 million, our clients offer to settle the dispute on the following basis:

1. The fourth, fifth, sixth and seventh defendants pay to the first plaintiff the sum of $8.45 million.
2. The fourth, fifth and sixth defendants acknowledge that the sum of

$8.45 million is due to the first plaintiff, Texxcon, pursuant to the Deed of Acknowledgment and Confirmation dated 24 December 2009 (as varied by the Deed of Variation dated 25 February 2010) between Austexx Constructions No 2 Pty Ltd and the plaintiffs; and that they will do all things necessary to ensure that the settlement sum is promptly paid to Texxcon.

3. The parties agree to orders being made by the court that all claims by all parties in the proceedings be dismissed on the basis that there be no order as to costs.

This offer is open to be accepted until 14 days after receipt of this letter.

13 The plaintiffs contended on the strength of the Calderbank offer that the fourth to seventh defendants should pay the costs of the plaintiffs, and of the eighth to tenth defendants, on a standard basis up to and including 28 March 2013[8] and thereafter on an indemnity basis.

14 In Hazeldene's Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2)[9], the Court of Appeal rejected the notion that a Calderbank offer gives rise to a presumption that the party rejecting the offer should pay the offeror's costs on an indemnity basis, if the offeree receives a less favourable result. The Court of Appeal held that the correct approach is to treat the rejection of a Calderbank offer as a matter to which the Court should have regard in the exercise of its discretion when considering whether to order indemnity costs and stated that the critical question for the Court is whether the rejection of the offer was unreasonable in the circumstances.[10]

15 The defendants argued that their rejection of the Calderbank offer was reasonable in all the circumstances. First, they pointed to the fact that the offer was a joint offer that was not capable of acceptance by any one of the defendants alone, independently of the others. They argued that it was reasonable for them to reject the offer, given that it required all of them to accept the offer on a joint and several basis without regard to the proportionate liability claims between them. Support for this proposition can be found in various authorities[11] but as the Full Federal Court in WSA Online Ltd v Arms (No 2)[12] observed, the fact that the offer is a joint offer is not a matter that conclusively operates against the making of an indemnity costs order.[13]

16 Secondly, they argued that the offer lacked a genuine element of compromise because the amount for which the plaintiffs were prepared to settle was effectively the full amount of the first plaintiff's claim for damages with just a slight discount.

In my view, it is correct that the terms of the offer amounted to minimal compromise on the part of the plaintiffs because, in reality, the extent of the claim was the first plaintiff's half share of the loan monies, not recovery of the full loan amount. There is a long line of authority to the effect that where the offer does not involve a genuine compromise, but is in fact either an invitation to capitulate or a derisory or nominal offer, it would not be unreasonable for the losing party to have rejected it.[14] But, as the authorities also demonstrate, the reasonableness or otherwise of the rejection of the offer in the circumstances cannot be assessed independently of the strength of the offeror's case.[15]

17 In this regard, it is relevant to note that the Calderbank offer was made shortly prior to trial at a time when it is reasonable to assume that the defendants were in a position to make an informed assessment of the prospects of success. It is also relevant to note in this context that they persisted with this litigation on a basis that was inconsistent with, and contrary to, the instructions that the fourth to sixth defendants gave their lawyers in the Ausmezz[16] proceeding about the "at call" nature of the Nominexx loan, which are found in their defences filed in that proceeding. The Court was urged by Mr Burnside QC to infer that the defendants rejected the offer as part of a strategy to draw out the proceeding with a view to pressuring the plaintiffs to capitulate, knowing as they did that their case was built on a falsehood in relation to a key fact which was of central importance to the proceeding, and central to the prospects of success.

18 Indemnity costs are not designed to punish a party for persisting with a case that ultimately fails. Nor are they are awarded as a means of deterring litigants from putting forward arguments that might be attended by uncertainty. Rather, they serve the purpose of compensating a party fully for costs incurred, as a normal costs order could not be expected to do, when the Court takes the view that it was unreasonable for the party against whom the order is made to have subjected the innocent party to the expenditure of costs.[17] In the context of Calderbank offers, the policy rationale underlying the imposition of indemnity costs is the unreasonable refusal of the offer. Indemnity costs are considered appropriate from the time of rejection of the offer because "notionally the real cause and occasion of the litigation is the attitude adopted by the defendant which has rejected the compromise".[18]

19 In my opinion, there is proper justification for viewing the rejection of the offer as unreasonable, and for awarding costs to the first plaintiff on an indemnity basis.

I accept that the terms of the offer meant that each of the fourth, fifth, sixth and seventh defendants all had to agree to settle on the terms offered but in all the circumstances, I do not consider this to be a complete answer nor in all the circumstances do I consider that it is a complete answer that there were proportionate liability claims as between them, nor do I regard the rejection of the offer as reasonable because it effectively required capitulation by the defendants. Where the premise of the defence was based on an assertion known by the fourth to sixth defendants to be false, and where the seventh defendant was represented by the same lawyers as the sixth defendant, the rejection of the offer, offering as it did some small discount but nonetheless a discount, was unreasonable. In so concluding I have not gone so far as to draw the inference that Mr Burnside QC urged as I did not need to, though I do make the comment that I did not regard that submission as fanciful.

20 I also do not consider that there is any substance in the additional argument put forward by Mr Murdoch QC that it was reasonable to reject the offer because the offer required the fourth to sixth defendants to make concessions regarding a

Deed of Acknowledgement and Confirmation, which was not in issue in the proceeding. As nothing was put before the Court to substantiate or explain the unreasonableness of that term as part of the offer, I am not persuaded that the submission has merit.

21 Accordingly, the first plaintiff is entitled to indemnity costs based on the rejection of the Calderbank offer. In so concluding I also do not accept the submission put by

Mr Murdoch QC that the claim for indemnity costs based on rejection of the Calderbank offer must fail because the consequence of the reasoning that the Court is permitted to give judgment against each of the defendants as concurrent wrongdoers in amounts proportionate to the amount of the loss or damage for which each is responsible, means that the judgments entered against the defendants will be in amounts less than the offer. That reasoning is flawed. The amount of the offer was less than the damages awarded by the Court and judgment for the first plaintiff will be entered for the total damages awarded. Whilst the effect of s 87CB of the TPA is that there will be an order as against each defendant for amounts totalling the damages awarded by the Court, the first plaintiff will still recover more than the amount that it offered to accept in settlement of all claims.

22 Mr Burnside QC submitted that the fourth to seventh defendants should be ordered to pay the costs of the plaintiffs, and of the eighth to tenth defendants, of these proceedings. The defendants submitted that the appropriate order is for the fourth to seventh defendants to pay the costs of the first plaintiff's claim and that an order should be made for the first plaintiff to pay the fourth to seventh defendants' costs of the second plaintiff's claim and the costs of the eighth to tenth defendants by counterclaim.

23 In Chen v Chan (No 2)[19] the Court of Appeal conveniently summarised the principles relevant to the Court's exercise of discretion as follows:

(1) The general rule is that costs should follow the event. Absent disqualifying conduct, the successful party should recover its costs even where it has not succeeded on all heads of claim.

(2) The Rules of Court permit significant flexibility in determining questions of costs. In particular, the Court is entitled to examine the realities of the case and will attempt to do 'substantial justice' as between the parties on matters of costs.

(3) Where there is a multiplicity of issues and mixed success has been enjoyed by the parties, a Court may take a pragmatic approach in framing the order for costs, taking into consideration the success (or lack of success) of the parties on an issues basis. Generally, if such an order is made, it is reflected in the successful party being awarded a proportion of its costs but not the full amount.

(4) A Court may, when fixing costs in a claim where there has been mixed success, take into account complications which it considers will arise in the taxation of costs, as part of its consideration of the overall interests of justice.

(5) Where a Court determines to make an order apportioning costs, then it does so primarily as 'a matter of impression and evaluation,' rather than with arithmetical precision, having considered the importance of the matters upon which the parties have been successful or unsuccessful, the time occupied and the ambit of the submissions made, as well as any other relevant matter.

(6) Where a number of parties have had the same representation, there is a 'rule of thumb' as to the apportionment of costs, namely that, where some of those parties have been successful and others have not, each successful party is only entitled to his or her proportion of the costs incurred on behalf of all, plus the costs, if any, incurred exclusively on his or her behalf. The primary issue for determination in such a case is that of fairness as between the parties, having regard to the manner in which the trial, or appeal, has been conducted.

(7) Usually, an order for costs will be made on a party/party basis. But an order for costs on a solicitor/client or indemnity basis may be made where special or unusual circumstances have been demonstrated, for example, by establishing misconduct in the proceeding, that the proceeding was brought for an ulterior purpose, or that it was patently unreasonable to institute, or maintain, the proceeding. Special circumstances may also include the making of an allegation of fraud which is not proved. (footnotes omitted)[20]

The exercise of the Court's discretion as to costs ultimately requires an assessment of what is fair and just in all of the circumstances.

24 The plaintiffs were successful on the claims of misleading and deceptive conduct and accessorial liability but the second plaintiff failed in its breach of directors' duties claim. It seems to me that some allowance should be made in the orders for the fact that the second plaintiff was unsuccessful on that discrete head of claim. However, I think that the defendants' proposed costs order is unworkable and would create real complications in the taxation of costs. There is the difficulty of identifying those costs that relate directly to the particular issue and there are undoubtedly costs common to each of the heads of claim requiring some apportionment methodology to determine a just and fair allocation. I consider that the pragmatic approach is to award a proportion of costs in favour of the plaintiffs. Although imprecise, mathematical precision is not possible nor required. In my opinion, a just and fair allocation is to reduce the plaintiffs' costs by 20 per cent. The substantial portion of the case was directed at the misleading and deceptive and accessorial liability claims in respect of which there was a great deal of common evidence with the breach of directors' duties claim. In the circumstances some reduction is warranted, but not a substantial reduction in my view.

25 Mr Murdoch QC submitted further that the plaintiffs should pay the fourth and fifth defendants' costs of meeting the proposed evidence of the Messrs Torrington and Kennedy, who the plaintiffs did not ultimately call, and the evidence of Mr Clark which was ruled at trial to be inadmissible, and that the plaintiffs should not have their costs in relation to those witnesses. It is appropriate to exclude from the costs of the plaintiffs and of the eighth to tenth defendants, their costs of the proposed evidence of Messrs Torrington and Kennedy because those witnesses were not called as the result of the Court's ruling on the admissibility of the proposed tendency evidence, and also their costs of the expert evidence of Mr Clark because his evidence was ruled inadmissible. Further, the fourth to seventh defendants' costs of meeting that evidence should be allowed by way of set-off against the plaintiffs' and eighth to tenth defendants' costs.

26 The first plaintiff gave security for costs by way of nine bank guarantees and now seeks an order for the return of those guarantees. That order is opposed or, if it is to be granted, the defendants seek a stay on that order. The reason for the opposition is that the defendants propose to appeal to the Court of Appeal and seek to preserve the security pending the filing of the appeal and the making of an application to the Court of Appeal to preserve the security in place pending the outcome of the appeal.

27 The first plaintiff claims that it is entitled to have the security discharged notwithstanding the foreshadowed appeal. The first plaintiff relies on Huon Shipping and Logging Co Ltd v South British Insurance Co Ltd[21] where Irvine CJ, in ordering the release of security for costs at the conclusion of the trial, stated:

This appears to be an important point of practice, but it is, I think, governed by authority. It is not a question of discretion, but of what is the proper effect of an order that "the plaintiff do pay into Court the sum of £100 as security for the costs of the defendant in this action." At first I was disposed to think that the order should be construed to include the costs of the action and the costs of any proceedings that might subsequently be taken by way of appeal. I think, however, that that is not so, and that the plaintiff, having secured a judgment in his favour, has complied with the terms of the order.[22]

This passage was cited with approval and applied in A & R Constructions Pty Ltd v Lees.[23] The first plaintiff also referred to the learned work 'Law of Costs'[24] in which Professor G E Dal Pont wrote as follows:

Case authority dictates that where a plaintiff pays money into court as security for the defendant's costs of the action, and is successful in the action, assuming no order requiring a successful plaintiff to meet the defendant's costs, the plaintiff is entitled to have that money paid out of court as soon as judgment is entered, notwithstanding the fact that the defendant has been granted a stay of execution with a view to an appeal. This continues to represent the law unless modified by the express terms of a statute or court rules.[25]

28 Although the defendants challenged the correctness of those decisions, I am not persuaded that I should not follow them. On the law as it stands at present, the first plaintiff is entitled to have the guarantees returned. In the circumstances I propose to make an order for the return of the guarantees.

29 The defendants sought a stay of judgment, alternatively a stay of execution of the judgment, for thirty days pending the filing of the appeal. No justification was provided for a stay of judgment and that order is refused. The stay on execution was not opposed and I consider it reasonable to grant a stay for thirty days.

AUSTEXX CORPORATION PTY LTD ACN 100 936 632 (Deregistered)

[1] Interest was calculated to the date of argument and continues to accrue at $2,071.24 per day to the date of pronouncement of orders.

[2] Kalenik v Apostolidis (No 2) [2009] VSC 410, [78] (Hargrave J).

[3] Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (No 3) [2003] VSC 244, [61] (Gillard J), cited with approval in Kalenik v Apostolidis (No 2) [2009] VSC 410, [83] (Hargrave J).

[4] Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (No 3) [2003] VSC 244 [68] (Gillard J); Kalenik v Apostolidis (No 2) [2009] VSC 410, [85] (Hargrave J).

[5] Trade Practices Act 1974 (Cth), s 87CD(1).

[6] Texxcon Pty Ltd & Anor v Austexx Corporation Pty Ltd & Ors [2013] VSC 327, [116].

[7] Calderbank v Calderbank [1976] Fam Law 93.

[8] This should be on a party/party basis as the calculation of costs on a standard basis did not take effect until 1 April 2013.

[9] [2005] VSCA 298; (2005) 13 VR 435.

[10] Ibid 441 [20], [23] (Warren CJ, Maxwell P and Harper AJA).

[11] King v Yurisich (No 2) [2007] FCAFC 51, [8] (Sundberg, Weinberg and Rares JJ); Barwon Region Water Authority v Aquatec-Maxcon Pty Ltd [2007] VSCA 186; (2007) 17 VR 480; Walter Construction v Walker Corporation [2001] NSWSC 359.

[12] [2006] FCAFC 108.

[13] Ibid [18] (Nicholson, Mansfield and Bennett JJ). See also Amadio Pty Ltd v Henderson [1998] FCA 823; (1998) 81 FCR 149.

[14] See Commissioner of State Revenue v Challenger Listed Investments Ltd (No 2) [2011] VSCA 398, [13]-[16] (Buchanan and Tate JJA and Sifris AJA) and the cases cited therein.

[15] Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd [2005] NSWSC 481, [38] (McDougall J); Commissioner of State Revenue v Challenger Listed Investments Ltd (No 2) [2011] VSCA 398, [17]-[21] (Buchanan and Tate JJA and Sifris AJA).

[16] Ausmezz Pty Ltd v Goldberger [2011] VSC 640.

[17] Hamod v New South Wales (2002) 188 ALR 659, 665 [20] (Gray J) (Carr and Goldberg JJ agreeing).

[18] Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721, 724 (Kirby P, Mahoney JA and Samuels AJA), cited with approval in Grbavac v Hart [1996] VSC 37; [1997] 1 VR 154, 164-5 (Hayne JA). See also Hazeldene's Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) [2005] VSCA 298; (2005) 13 VR 435, 441 [21] (Warren CJ, Maxwell P and Harper AJA).

[19] [2009] VSCA 233.

[20] Ibid [10] (Maxwell P, Redlich JA and Forrest AJA).

[21] [1923] 23 VLR 216.

[23] (1982) 7 ACLR 900 (Blackburn CJ).

[24] GE Dal Pont, Law of Costs (Butterworths, 2009).

[25] Ibid [28.65] (footnotes omitted). See also Ambridge Investments v Baker [2010] VSC 234 (Vickery J).