Dumitrov v S C Johnson & Son Superannuation Pty Ltd & Anor (No 3) [2007] NSWSC 66

New South Wales Supreme Court

CITATION : Dumitrov v S C Johnson & Son Superannuation Pty Ltd & Anor (No 3) [2007] NSWSC 66

HEARING DATE(S) : 09/02/07 JUDGMENT OF : Gzell J

EX TEMPORE JUDGMENT DATE : 9 February 2007

DECISION : Plaintiff awarded party and party costs to the date of the offer and indemnity costs thereafter.

CATCHWORDS : PROCEDURE - Costs - Plaintiff's offer to accept specified amount plus costs and disbursements to be advised - No advice - Whether offer capable of immediate acceptance as an offer of an amount plus costs to be assessed or agreed - Where Calderbank v Calderbank (1975) 1 All ER 333 should be followed

Atilla Dumitrov - Plaintiff PARTIES : SC Johnson & Son Superannuation Pty Ltd - First Defendant Hannover Life Re of Australasia Ltd - Second Defendant

FILE NUMBER(S) : SC 3614/04

COUNSEL : Ms K Dulhunty - Plaintiff Mr R Horsely - Second Defendant

SOLICITORS : Legal Aid Commissioner of NSW - Plaintiff Stavropoulos Solicitors - Second Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

GZELL J

FRIDAY 9 FEBRUARY 2007

3614/04 ATILLA DUMITROV v S C JOHNSON & SON SUPERANNUATION PTY LTD & ANOR (NO 3) EX TEMPORE JUDGMENT 1 The plaintiff seeks an order for the costs on a party and party basis from 7 March 2005 and on an indemnity basis from that date. The basis for the application arises from the course of correspondence between the solicitors for the parties. The solicitors for the second defendant made an offer. That offer was rejected and a counter-offer was made on 7 March 2005 by the solicitors for the plaintiff in these terms: "We are instructed to make a counter-offer to settle the matter for $115,000 plus our professional costs and disbursements, of which we will advise you shortly." 2 That counter-offer was not accepted, nor did the solicitors for the plaintiff indicate the level of their costs and disbursements until 28 November 2006, at which stage a further offer was made by the solicitors for the plaintiff and rejected. 3 The second defendant submits that the principle in Calderbank v Calderbank [1975] 1 All ER 333 should not be followed in this case. 4 First, it was submitted that the second defendant's evidence was not on at the stage the counter-offer was made and it had difficulties in putting on that evidence. That did not prevent the second defendant's solicitors from making an offer to which the counter-offer of 7 March 2005 was a response. I do not regard the circumstance that the second defendant's evidence had not been served as causing me to depart from the approach taken in Calderbank. 5 The plaintiff's allegation with respect to the second defendant's re-assessment of the plaintiff's claim was that it had not acted with the utmost good faith. The quantum of damages that would emerge from such a failure was, subject to an argument between two figures, clear. The plaintiff would be entitled to one or other of those figures or to nothing at all. This was a case in which the second defendant understood the limit of its potential liability and the risk that the plaintiff might obtain nothing at all. 6 The third argument against adopting the approach in Calderbank was the phrasing of the counter-offer and the suggestion that a quantified amount of professional costs and disbursements would be provided. 7 In my view, the offer is clearly one of a specified amount plus costs. It was capable of acceptance. It was an offer that, in the absence of the provision of a specified figure for professional costs and disbursements, could have been accepted, and the plaintiff held to the offer on the basis that it was one for $115,000 plus costs to be assessed or agreed. 8 In the circumstances, I am of the view that the approach in Calderbank should be followed and I make the orders contained in the short minutes of order proffered on behalf of the plaintiff with the exception of the declarations and the exception of the first paragraph of the order. I make orders in terms of those short minutes of order as amended by me, initialled by me, dated by me and placed with the papers. I stay the orders until 5 pm on Tuesday 20 February 2007.