Dixon v Foote (No 3)

[2012] ACTSC 123

Susan Virginia Dixon v Andrew Foote (No 3)
[2012] ACTSC 123 (26 July 2012)

COSTS – Calderbank offer by plaintiff – order for indemnity costs

Calderbank v Calderbank [1975] 3 WLR 586

Dixon v Foote & Calvary Health Care ACT Ltd [2012] ACTSC 101
Dixon v Foote & Calvary Health Care ACT Ltd(No 2) [2012] ACTSC 119

EX TEMPORE JUDGMENT

No. SC 778 of 2007

Judge:             Sidis AJ
Supreme Court of the ACT

Date:              26 July 2012

IN THE SUPREME COURT OF THE     )
  )          No. SC 778 of 2007
AUSTRALIAN CAPITAL TERRITORY           )          

BETWEEN:Susan Virginia Dixon

Plaintiff

AND:Andrew Foote

Defendant

ORDER

Judge:  Sidis AJ
Date:  26 July 2012
Place:  Canberra

THE COURT ORDERS THAT:

1. Order two made on 24 July 2012 is vacated. In lieu thereof, the defendant is to pay the plaintiff’s costs of the proceedings on a party and party basis up to and including

21 November 2011 and on an indemnity basis thereafter.

1. My reasons are published.

1. In the matter of Dixon v Foote, the substantive judgment was issued on 27 June 2012 and further orders made on 24 July 2012. The matter comes back before the court today to deal with the order for costs made on 24 July 2012.

2. The plaintiff put before the court evidence of a number of offers made on Calderbank principles to the plaintiff. The first of those offers made on 21 November 2011. Prior to that date the plaintiff had offered on 19 January 2011 a figure for settlement without noting that it was made on a Calderbank basis and that, were it not to be accepted, the application for indemnity costs would be made. In those circumstances, I did not think that it could be relied upon in support of the application for indemnity costs. However I am satisfied that the letter of 21 November 2011 was in proper form and that therefore, prima facie, it entitled the plaintiff to indemnity costs from that date.

3. The defendant placed before me correspondence that dealt with the ongoing negotiations between the parties. I was not satisfied that there was any material that suggested that it was reasonable on his part to disregard the letter of offer of 21 November 2011. The judgment ultimately entered for the plaintiff on 24 July 2012, exceeds the amount which she offered to accept in settlement of her claim on 21 November 2011.  In my view, having advised the defendant on that date that she would tender the letter in support of an application for indemnity costs, she was entitled to succeed on that application.

4. Order two made on 24 July 2012 is vacated and in lieu thereof I make the following order:

5. The defendant is to pay the plaintiff’s costs of the proceedings on a party and party basis up to and including 21 November 2011 and on an indemnity basis thereafter.

6. My Reasons are published.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Acting Justice Sidis.

Associate:          James Middleton

Date:                 27 July 2012

Solicitor for the Plaintiff:  Mr Mccarthy of Bradley Allen Lawyers
Solicitor for the Defendant:  Mr Tierney of Ken Cush & Associates
Date of hearing:  26 July 2012
Date of judgment:  26 July 2012