Rexstraw & Ors v Johnson & Ors

CATCHWORDS : PROCEDURES, COSTS, contribution between parties, apportionment of costs on appeal, Calderbank letter, settlement offer, expiration of settlement offer, failure to accept settlement where settlement requires agreement of several parties CASES CITED : SMEC Testing Services Pty Limited v Campbelltown City Council [2000] NSW CA 323 Jones v Bradley (No. 2) [2003] NSWCA 258 Bruce Richard Rexstraw PARTIES : Raymond Keith Johnson Trevor Albert Thirkettle Provident Holdings Limited FILE NUMBER(S) : CA 40975/02; 40944/02; 40943/02 For Johnson - Mr M McCulloch/ Mr D F Villa COUNSEL : For O'Sullivan/Provident - Mr F Douglas QC / Ms R Sofroniou For Rexstraw - Mr D Conti SC For Thirkettle - Mr I E Davidson For Johnson - P W Turk & Associates SOLICITORS : For O'Sullivan - The Argyle Partnership For Rexstraw - Phillips Fox For Thirkettle - Emil Ford & Co

LOWER COURT District Court JURISDICTION : LOWER COURT DC 865/00 FILE NUMBER(S) : LOWER COURT Hogan DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40975/02 CA 40944/02 CA 40943/02

SHELLER JA TOBIAS JA

Thursday 4 March 2004 BRUCE RICHARD REXSTRAW & ORS -v- JOHNSON & ORS (NO. 2) Judgment on Orders and Costs

1 SHELLER JA: I agree with Tobias JA. 2 TOBIAS JA: On 9 October 2003, judgment on the substantive issues in this matter (the main judgment) was delivered. The primary judgment was that of myself, with Sheller JA and Foster AJA agreeing. 3 The only issues left for determination are the form of the orders necessary to reflect the findings in [144] of the main judgment and the issue of costs in relation to both the trial and the appeal. The parties were requested to bring in short minutes of order to reflect the findings in [144] and [145] of the main judgment, it being contemplated that in the event of disagreement the parties would make supplementary written submissions in relation to the outstanding issues. Each of the parties has done so with respect to both issues. They have agreed that these matters should be decided without further oral argument and that, due to the expiry of the commission of Foster AJA, Sheller JA and myself should make the necessary determination.

Orders on the appeal 4 The consequence of the findings on apportionment set out in [144] of the main judgment is that orders 10 to 15 (inclusive) of the orders made by the primary judge on 20 September 2002 must be set aside. However, there is a dispute as to the form the substituted orders should take. 5 Provident/O'Sullivan and Rexstraw submit that it is both sufficient and appropriate for the Court to make what I refer to as a compendious order recording the apportionment of the appellants' contributions to the investors' loss in the proportions set forth in [144] of the main judgment. It was submitted that to reflect those proportions in individual orders applicable to each of the six cross-claims as did the primary judge is unnecessarily complicated, confusing, convoluted and achieves nothing more than if a compendious order is made. 6 On the other hand, Johnsons submit that the approach of the primary judge is the more appropriate. This is because separate orders are required to cater for the possible scenario that one of the three appellant groups is, for example, insolvent so that the contribution may be worked out as between the others. Furthermore, it is submitted that as Provident did not proceed with its appeal, the orders of the primary judge, insofar as they apply to Provident, should remain unaffected. In other words, his Honour's apportionment of liability against Provident of 58.5% should stand. 7 I do not think there is substance in these submissions. In the first place, as submitted by Provident/O'Sullivan, the orders of the primary judge that the appellant's pay the investors the amount of their individual losses render them jointly and severally liable to do so. To the extent that one of them meets that liability, he or they can recover from the other (or others) the proportion in which it has been found that he or they should contribute. If one of those parties is insolvent, then that is an occurrence with which the Court is neither concerned nor required to anticipate. Furthermore, it is not clear why the making of separate orders would cure whatever may flow from such an eventuality. The solvent party (or parties) will be required to pay no more than his (or their) share of the investors' verdict as has been determined by the Court. If that results in the party who pays the whole of that verdict paying more than his (or their) share because of the insolvency of one of the parties required to contribute thereto, then so be it. 8 Although the draft orders proposed by Johnsons attempt to preserve the effect of the primary judge's orders against Provident, I see no legitimate reason to follow suit notwithstanding that Provident did not proceed with its appeal. Provident and O'Sullivan were treated as one at both trial and on appeal. Furthermore, Provident remained a respondent to Johnsons' appeal (CA 40975/02). There was no attempt either by the primary judge or by the appellants to make separate findings against each of Provident and O'Sullivan. The Court's findings in [144] of the main judgment that attributes a 42.5% contribution to Provident/O'Sullivan jointly was not challenged in Johnsons' submissions. I see no reason, therefore, to preserve the primary judge's orders insofar as they affect Provident. 9 Accordingly, in my opinion the orders proposed by O'Sullivan and Rexstraw are more appropriate and I shall in substance adopt them.

Costs in relation to the trial 10 So far as the investor's costs were concerned, the primary judge ordered that Provident/O'Sullivan, Johnsons and Rexstraw pay those costs on a party/party basis. Each of those parties had cross-claimed against each other in various combinations involving the filing of six cross-claims. In respect of those cross-claims his Honour ordered that each cross-claimant and each cross-defendant bear his or its own costs of their respective cross-claims. 11 There was no appeal by Provident/O'Sullivan or Rexstraw against the primary judge's orders with respect to the costs of the trial. However, Johnsons did appeal against those orders on the following grounds: "13. His Honour erred in ordering Johnsons to pay the Investors' costs for the period after 30 July 2002; 14. His Honour erred in refusing to order that to the extent that the sum of: a. Johnsons' proportionate share of the Defendants' total liability to the Investors; and b. Johnsons' proportionate liability for the Plaintiff's costs up to 30 July 2002 exceeds $150,000 the Provident defendants are to pay to the Investors that excess amount and Johnsons' liability for the Investors' costs is reduced accordingly. 15. His Honour erred in refusing to order that in respect of the period from 16 April 2002 a. the Provident Defendants pay 65%; b. Rexstraw pay 35% of Johnsons' costs on an indemnity basis." 12 Johnsons sought orders reflecting the errors referred to in the grounds of appeal set out above. They made detailed written submissions in respect of their appeal on costs (Orange Book 195-203), which were later supplemented in writing. 13 Neither Provident/O'Sullivan nor Rexstraw seems to have responded in writing to Johnsons' submissions in the Orange Book and the grounds of appeal relating to costs were not dealt with on the hearing of the appeal. However, Johnsons are now pursuing the issue and have filed supplementary written submissions to those in the Orange Book. The other parties have now responded in writing to those submissions. 14 It is to be noted that Johnsons' current written submissions seek to rely upon its original written submissions amended by taking into account the apportionment of liability between the relevant parties ultimately reached by the Court and reflected in [144] of the main judgment.

The pre-trial facts relied on by Johnsons 15 By letters dated 28 March 2002 the investors' solicitors wrote to Rexstraw's solicitors offering to settle their clients' claim against Provident/O'Sullivan, Rexstraw and Johnsons for the sum of $500,000 plus costs of $100,000. That offer remained open until 5.00 pm on 8 April 2002. 16 On 2 April 2002, Rexstraw's solicitors wrote to the investors' solicitors rejecting the offer contained in the letters of 28 March 2002 but counter-offering to settle the investors' claim against Rexstraw for the sum of $200,000 inclusive of costs. This offer was to remain open until 5.00 pm on 12 April 2002. A copy of that letter was forwarded to the solicitors for the other active defendants. 17 Neither Johnsons nor Provident/O'Sullivan accepted the investors' offer contained in the letters of 28 March 2002 and which expired on 8 April 2002. 18 On 15 April 2002 the investors' solicitors wrote to Johnsons' solicitor offering to settle their claim against Johnsons for $150,000 inclusive of costs. It was noted that any acceptance of that offer was to be conditional upon Johnsons reaching agreement with Provident/Sullivan and Rexstraw in relation to their foreshadowed cross-claims. Subject to that condition, Johnsons accepted that offer by letter dated 16 April 2002. 19 On 16 April 2002, Johnsons' solicitors wrote a Calderbank letter to the solicitors for Rexstraw and Provident/O'Sullivan in which they noted that they had conditionally accepted the investors' offer for them to contribute $150,000 inclusive of costs, that cross-claims by those parties against Johnsons was proposed and that they considered that Johnsons' liability to the investors was limited to a maximum of $117,000 plus interest being the amount recovered by IBEX under its mortgage (see [48] of the main judgment). It was asserted that in the event of an apportionment of damages between Provident/O'Sullivan, Rexstraw and Johnsons, the latter's exposure would be less than that of the other parties. It was further asserted that in the event that that exposure was less than $150,000, Johnsons would seek an order for costs on an indemnity basis. 20 Negotiations appear to have taken place between the defendant parties regarding settlement of the litigation resulting in a letter dated 7 June 2002 from the solicitors for Provident/O'Sullivan to the solicitors for the investors offering the sum of $50,000 inclusive of costs in full and final settlement of all claims by the investors against them conditional upon dismissal and release of all cross-claims filed against them by the other parties. This offer was to remain open until 5.00 pm on 14 June 2002. This offer was, apparently, rejected. 21 By letter dated 3 July 2002, that offer was increased to $100,000 inclusive of costs. The investors' solicitors rejected the offer by letter dated 5 July 2002 and a counter-offer was made of $200,000 inclusive of costs in full and final settlement of the investors' claims against Provident/O'Sullivan. 22 By letter dated 26 July 2002 the solicitors for Rexstraw offered the sum of $175,000 inclusive of costs in settlement of the investors' claim against their client conditional upon appropriate releases being entered into between all parties. 23 The result of the foregoing was that as at 29 July 2002, Provident/O'Sullivan had offered to contribute $100,000 towards the investors' claim, Johnsons had offered $150,000 and Rexstraw $175,000, a total of $425,000 inclusive of costs. This fell well short of the investors' March offer of $600,000 inclusive of costs. 24 By letter dated 30 July 2002 the investors' solicitors rejected Rexstraw's offer and counter-offered to accept the amount of $675,000 inclusive of costs of which, so it was suggested, $175,000 was to be contributed by Provident/O'Sullivan, $225,000 by Johnsons and $275,000 Rexstraw. However, it was made clear that the investors were prepared to accept the sum of $675,000 regardless of the proportion contributed by the defendants to that total figure. That offer remained open until 4.00 pm on 2 August 2002. The offer was rejected and a 13 day hearing before the primary judge, commencing on 5 August 2002, resulted. 25 Ultimately, judgment was entered by the primary judge in favour of the investors in the sum of $571,917 inclusive of interest but exclusive of costs.

The submissions and determination of the issue of costs 26 The primary judge had held that Provident/O'Sullivan would ultimately bear responsibility for 58.5% of the verdict (ie $334,571), Johnsons 10% (ie $57,192) and Rexstraw 31.5% (ie $180,153.85). 27 On that basis Johnsons had submitted to the primary judge that there should be an order limiting Johnsons' liability for the investors' costs to those incurred prior to 30 July 2002 (when the investors' final offer of $675,000 inclusive of costs was made); an order that Johnsons' liability to the investors should not exceed $150,000 inclusive of costs and an order that from 16 April 2002, Johnsons' costs of the proceedings be paid by Provident/O'Sullivan (as to 65%) and by Rexstraw (as to 35%) on an indemnity basis. 28 After hearing argument the primary judge rejected Johnsons' submissions in the following terms: "I think there is no doubt that it is proper to say that this matter was complex. Reading that correspondence it is also clear that offers and counter offers were made and were genuinely made. In my view it is not sufficient to attract a costs penalty, to say merely that the plaintiff has achieved a result better than that set out in a Calderbank order. There needs to be shown some element of conduct that was in some way unreasonable. It may not be necessary that it be improper, but it seems to me reading that correspondence that these defendants all approached the problem of settling, or attempting to compromise this complex matter, genuinely and reasonably in the light of the circumstances as they then appeared to them. I am not persuaded that the circumstances called for an order other than the normal order for costs"

29 As a consequence of the Court's decision in the main judgment, the responsibility of Provident/O'Sullivan in respect of the judgment of $571,917 has been reduced from 58.5% to that of 42.5% (ie a reduction from $334,571 to $243,065); that of Johnsons has been increased from 10% to 24% (ie from $57,192 to $137,260); and that of Rexstraw has been increased from 31.5% to 33.5% (ie from $180,153.85 to $191,592). It will be noted that the final settlement offers of Provident/O'Sullivan and Rexstraw of $100,000 and $175,000 respectively were each less than the amount which they are now required to contribute to the investors' judgment and which will be significantly greater once the investors' costs of the trial are taken into account. 30 So far as Johnsons' are concerned, the amount of $137,260 (exclusive of costs) is only slightly less than their offer $150,000 (inclusive of costs). Once costs are taken into account it would seem to me that the amount for which Johnsons will be responsible to the investors will significantly exceed $150,000. Of course, the investors' costs would have been significantly less had the matter been settled prior to the hearing. In April 2002 the investors had originally offered to settle the matter for $500,000 plus $100,000 for costs. The total of $600,000 had increased to $675,000 by the end of July. It would not be unreasonable to assume that the extra $75,000 related in the main to the further costs which had been incurred by that time. The investors' costs, which they were prepared to settle, was then approaching $175,000. However, looking at the matter from Johnsons' point of view as of April 2002, their proportion of the then costs of $100,000 would now be $24,000 which, when added to the figure of $137,260, would bring their total liability to $161,260 which exceeds their offer of $150,000 by a not insignificant margin. 31 It is true, as Johnsons submit, that in respect of the April 2002 offer by the investors of $600,000 inclusive of costs, they offered $150,000 or 25% of that figure which slightly exceeded their ultimate responsibility of 24%. However, in my opinion, the investors' offer expired before Provident/O'Sullivan and/or Rexstraw had had proper time to consider it which detracts from the force which that submission might otherwise have had. 32 Furthermore, Johnsons' Calderbank letter of 16 April 2002 asserted that its liability was limited to a maximum of $117,000 plus interest. As at 14 February 2002, some 5 years had elapsed without the payment of interest. The interest rate provided by the loan agreement was 12.5%. When applied to $117,000 for five years it totals $73,125. When these amounts are added together, the final total is $190,125 - an amount considerably in excess of Johnsons' offer of $150,000 inclusive of costs. In these circumstances, and when Johnsons' true responsibility for the investors' loss is taken into account, its offer of $150,000 in April 2002 (which remained on the table until July 2002) was less than Johnsons' proper contribution to the investors' loss. In other words, whichever way the figures are run, Johnsons' offer of $150,000 inclusive of costs was less than what they should have contributed to any settlement and was certainly an insufficient response to the investors' offer shortly before the commencement of the trial of $675,000 inclusive of costs. 33 I have not overlooked the fact that up to 8 April 2002, the investors would have accepted $600,000 inclusive of costs and Johnsons had offered to contribute 25% of that figure. Johnsons' offer of $150,000 was part of their solicitor's Calderbank letter of 16 April 2002. However, as indicated, that letter was sent some days after the investors' offer to accept $600,000 had expired and was a conditional acceptance of the investors' offer contained in their solicitor's letter of 15 April 2002, which condition was never satisfied. 34 The relevant principle is that costs normally follow the event. The effect of a Calderbank letter has recently been stated by Giles JA in SMEC Testing Services Pty Limited v Campbelltown City Council [2000] NSW CA 323 in those terms (at [37]): "The making of an offer of compromise in the form of a Calderbank letter (from Calderbank v Calderbank (1976) Fam 93), where the offeree does not accept the offer but ends up worse off than if the offer had been accepted, is a matter to which the court may have regard when deciding whether to otherwise order, but it does not automatically bring a different order as to costs. All the circumstances must be considered, and while the policy informing the regard had to a Calderbank letter is promotion of settlement of disputes an offeree can reasonably fail to accept an offer without suffering in costs. In the end the question is whether the offeree's failure to accept the offer, in all the circumstances, warrants departure from the ordinary rule as to costs, and that the offeree ends up worse off than if the offer had been accepted does not of itself warrant departure…"

See also, Jones v Bradley (No. 2) [2003] NSWCA 258 at [7], [8] and [9]. 35 There is no doubt that settlement in this matter could not have been achieved without the agreement and co-operation of all parties. As Provident/O'Sullivan submitted, it was necessary for the parties to reach a global settlement. There is also no doubt, as the primary judge held, that the matter was complex. In particular, although the liability of the appellants to the investors was relatively straight forward, the same could not be said of the judgment involved in determining the responsibility of each of the appellants to contribute to the investors' loss. It is in this context that the primary judge considered that the conduct of Provident/O'Sullivan and Rexstraw in response to the investors' offer to settle both in April and July 2002 was, in all the circumstances, reasonable. I see no reason to depart from that finding. 36 Furthermore, contrary to Johnsons' submission, it seems to me that that conduct (and whether or not it was reasonable in all the circumstances) was itself one of the circumstances which the court was entitled to take into account in the exercise of its judicial discretion with respect to the awarding of costs. Again, it should not be overlooked that Johnsons' added to the expense of the trial by maintaining (as they did in this Court) that they had no liability to the investors. They could have easily admitted liability and paid an appropriate sum into court. They did neither. 37 Accordingly, I agree with the primary judge that the failure of Provident/O'Sullivan and/or Rexstraw to increase their offer of contribution in order to satisfy the investors' offer of settlement either in April or July 2002 did not in all the circumstances warrant departure from the ordinary rule that, firstly, the investors should be entitled to the whole of their costs against any one of the appellants and, secondly, the contribution of the appellants as between themselves to those costs should be in accordance with their responsibility, as ultimately found, to contribute to the investors' loss. 38 For the foregoing reasons, I see no reason to interfere with the primary judge's orders with respect to the costs of the investors' or the costs of the cross-claims. It follows that, in my view, Orders 9 and 16 made by his Honour on 20 September 2002 should not be disturbed.

The costs of the appeal 39 Paragraph 145 of the main judgment sets out the Court's views as to the costs of the three appeals.

Appeal CA 40943/02 - Rexstraw's appeal 40 In [145(a)] of the main judgment, the view was expressed that Johnsons should pay the costs of this appeal. This was because Rexstraw had succeeded in having Johnsons' percentage contribution increased from 10% to 24%. 41 Johnsons submit that Rexstraw sought to achieve two outcomes in this appeal: firstly, a reduction of his apportionment of liability which he failed to do as his contribution was increased from 31.5% to 33.5%; secondly, to make Johnsons liable for the whole of his liability to the investors on the basis of breach of their fiduciary duty. It was submitted that a large proportion of both the written and oral submissions addressed this last issue. 42 However, the grounds of appeal filed by Rexstraw make it clear that it was alleged that the primary judge erred in apportioning liability as between Rexstraw and Johnsons at only 10% as against the latter. On these grounds of appeal Rexstraw was successful. On the other hand, Rexstraw argued, and no doubt anticipated, that an increase in Johnsons' responsibility should result in a reduction of his own but in this he was unsuccessful: in fact, it increased slightly. Furthermore, Rexstraw's argument that Johnsons should be liable for the whole amount of Rexstraw's liability to the investors on the basis of breach of fiduciary duty was rejected. Given the nature of his partial success in this appeal, Johnsons should only be required to pay one third of Rexstraw's costs thereof. 43 Johnsons further submit that for the purpose of making orders in relation to the costs of the appeals, those costs should be allocated one third to the liability appeal by O'Sullivan, one third to the liability appeal by Johnsons and one third to the arguments in relation to apportionment. It therefore submits that orders should be made to the following effect: a) Johnsons to pay one half of the investors' costs of all three appeals; b) O'Sullivan to pay one half of the investors' costs of all three appeals; c) Johnsons to pay one third of O'Sullivan's costs of all three appeals; and d) Rexstraw to pay one third of Johnsons' costs and one third of O'Sullivan Costs of all three appeals. 44 The investors also submit that there should be an order in appeal CA 40943/02 that Johnsons pay their costs of that appeal. However, the investors were not party to that appeal. Accordingly, it is more appropriate to make specific orders in respect of each appeal rather than a compendious order as suggested. 45 At the end of the oral argument on the appeal it was accepted that the investors were entitled to their costs of appearing for the three days of the appeal even though they had no interest in the appeal currently under consideration or otherwise in respect of that part of the hearing which related to the issue of apportionment. As indicated below, I am of the opinion that in respect of the other two appeals, the investors should have their costs of those appeals. Given the concession of the parties to which I have referred, the investors should be entitled to recover the whole of their costs of appearing before the Court for three days and that one half of those costs should be apportioned to each of appeals CA 40975/02 and CA 40944/02. 46 However, so far as appeal CA 40943/02 is concerned, in my opinion the appropriate order in the circumstances referred to in [37] above, is that Johnsons should pay one third of Rexstraw's costs of that appeal.

Appeal CA 40975/02 - Johnsons' appeal 47 As I have said, in my opinion it is necessary to make stand alone orders in relation to this appeal notwithstanding the submission by Johnsons that all three appeals can be dealt with in the one order. However, Johnsons has put nothing to the Court that would warrant departure from the order proposed in [145(b)] of the main judgment. They lost on liability and they failed to reduce their own contribution or to increase that of Provident/O'Sullivan or Rexstraw (except to a minor degree).

Appeal CA 40944/02 - O'Sullivan's appeal 48 This appeal was essentially that of O'Sullivan both in respect of liability as well as apportionment. O'Sullivan failed on his appeal on liability but partially succeeded on contribution. I therefore see no reason to alter the order contemplated by [145(c)] of the main judgment except that O'Sullivan (rather than Provident and O'Sullivan) should pay the investors' costs of that appeal. 49 The investors submit that Johnsons should also be required to pay their costs of this appeal, no doubt to guard against the possibility that an order for costs cannot effectively be enforced against O'Sullivan. I can see no justification for such an order. O'Sullivan sought to argue that he was not liable to the investors and failed. Johnsons, if anything, supported the investors in that appeal insofar as it was in their interests that O'Sullivan should be found liable. In these circumstances, I can see no basis upon which Johnsons should be required, in effect, to guarantee that O'Sullivan will pay the investors' costs of that appeal. 50 So far as the costs of Johnsons and Rexstraw in this appeal are concerned, O'Sullivan submits that Johnsons should pay his costs of the appeal and that there be no order as to Rexstraw's costs. The basis of this submission is that Johnsons resisted the appeal by O'Sullivan that Johnsons' contribution should be increased from that determined by the primary judge, an issue upon which O'Sullivan succeeded. O'Sullivan also sought an increase in Rexstraw's contribution except that in this respect it did not (to any material extent) succeed albeit that Rexstraw's contribution was increased from 31.5% to 33.5%. As Rexstraw does not seek an order for costs in relation to this appeal, the order proposed in [145(c)] of the main judgment that as between Provident/O'Sullivan and Rexstraw that 'there be no order as to the costs of this appeal' will stand with the deletion of the reference to Provident. 51 So far as the costs of the appeal between O'Sullivan and Johnsons are concerned, it seems to me that the issue of apportionment between those parties was resolved in appeal CA 40975/02 in which Johnsons was ordered to be pay, inter alia, O'Sullivan's costs. In my opinion in these circumstances there would be an element of doubling up if Johnsons were required to pay O'Sullivan's costs of appeal CA 40944/02 which involved the same issue of apportionment. In these circumstances, I confirm the order contemplated in [145(c)] of the main judgment that there should be no order as to costs as between O'Sullivan and Johnsons in this appeal.

Orders 52 It follows from the foregoing that, in my opinion, the following orders should be made:

In proceedings CA 40943/02 : a) Appeal allowed b) The respondent to pay one third of the appellant's costs of the appeal but if otherwise qualified, to have a certificate under the Suitor's Fund Act, 1951

a) The appeal by the first appellant be dismissed. b) The appeal by the second appellant against the first respondents be dismissed c) The second appellant to pay the first respondents' costs of the appeal d) The appeal by the second appellant against the second and third respondents be allowed e) Each of the second appellant and the second and third respondents to pay their own costs of the appeal

In proceedings CA 40975/02 : a) Appeal dismissed b) The appellants to pay the respondents' costs of the appeal

a) Orders 10 to 15 (inclusive) made by Hogan ADCJ on 20 September 2003 be set aside and in lieu thereof, judgment be entered on the cross-claims as between the appellants in respect of their total liability to the plaintiffs in the following proportions: (i) the appellant in CA 40943/02 - 33.5% (ii) the appellants in CA 40944/02 - 42.5% (iii) the appellants in CA 40975/02 - 24%.

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