Court of Appeal

Kitchen v Vision Eye Institute Ltd & Anor [2017] QCA 032 (15/4961) Margaret McMurdo P and Fraser JA and Daubney J 14 March 2017

Full-text: QCA17-032.pdf

Catchwords

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – OFFERS TO COMPROMISE, PAYMENTS INTO COURT AND SETTLEMENTS – INFORMAL OFFERS AND CALDERBANK LETTERS – UNREASONABLE REFUSAL OF OFFER – where the respondents obtained judgment in an action for damages – where the appellant brought an appeal against the primary judgment – where the appeal was dismissed – where the appellant raised numerous grounds of appeal that ultimately were abandoned – where the appellant unreasonably refused two Calderbank offers of compromise the respondents made before the hearing of the appeal – where the two Calderbank offers were both substantially more favourable to the appellant than the order of the trial judge – where the parties agree the appellant should be ordered to pay the respondents’ costs of the appeal – whether those costs should be assessed on the standard basis or on the indemnity basis

Summary Notes

General Civil Appeal – Further Order – where the respondents obtained judgment in an action for damages by which, amongst other orders, the appellant was ordered to pay the respondents the sum of $10,845,476 – where by a subsequent order the appellant and Mrs Kitchen were ordered to pay 95 per cent of the respondents’ costs of the proceedings assessed on the indemnity basis – where the appellant brought an appeal against the primary judgment – where the appellant’s appeal ultimately turned upon the proper construction of a contractual provision – where the Court dismissed the appeal and gave the parties leave to make submissions about costs – where the appellant raised numerous grounds of appeal that ultimately were abandoned – where the appellant unreasonably refused two Calderbank offers (Calderbank v Calderbank [1975] 3 WLR 586) of compromise the respondents made before the hearing of the appeal – where the first offer was made by email on 8 February 2016 and was stated to remain open until 5.00 pm on 12 February 2016 – where there were terms of the offer that upon receipt of the appellants’ acceptance of the offer, the present appellant would do all things necessary to have the notice of appeal dismissed with no orders to costs, the respondents would do all things necessary to have a bankruptcy notice served upon the present appellant set aside with no orders to costs, and in the event that the appellants defaulted in any of the specified payments the respondents had the right immediately to enter judgment against the appellant by consent for the outstanding amount of the payment sum at the relevant time – where the respondents’ second offer was made by email dated 14 February 2016 which was headed “without prejudice” with that offer remaining open for acceptance until 9.00 am on the following morning, 15 February 2016, when the appeal was listed for hearing and was in fact heard – where the two Calderbank offers were both substantially more favourable to the appellant than the order of the trial judge – where the parties agree the appellant should be ordered to pay the respondents’ costs of the appeal – whether those costs should be assessed on the standard basis or on the indemnity basis – where the first offer was substantially more favourable to the appellant than the result in the Trial Division; even if the proper amount of the costs and disbursements recoverable by the respondents under the costs order in the Trial Division was not as high as $3,577,143 (excluding GST), as the respondents stated in their first offer, the recoverable amount must have been very substantial; that offer abandoned that substantial amount together with some $1,846,000 of the judgment amount; and it also included the substantial compromise that the appellants would assume liability to pay the settlement sum over four years, instead of immediately as in the case of the existing judgment in the respondents’ favour – where the first offer was capable of immediate acceptance and involved no material ambiguity – where the first offer was made a week before the first of the two days listed for the hearing of the appeal – where the appellant then should have been readily able to make an informed decision about his prospects of success in the appeal – where the appellant has not identified a reason for not accepting the respondents’ first offer. The appellant pay the respondents’ costs of and incidental to the appeal, those costs to be assessed on the indemnity basis in respect only of costs incurred by the respondents after 5.00 pm on 12 February 2016, and otherwise to be assessed on the standard basis