PM Sulcs & Associates Pty Ltd v Oliveri [2010] NSWCA 16 (16 February 2010)

Supreme Court of New South Wales - Court of Appeal

[Index] [Search] [Download] [Help]

---

PM Sulcs & Associates Pty Ltd v Oliveri [2010] NSWCA 16 (16 February 2010)

Last Updated: 22 February 2010

NEW SOUTH WALES COURT OF APPEAL

CITATION:
PM Sulcs & Associates Pty Ltd v Oliveri [2010] NSWCA 16


FILE NUMBER(S):
2009/00298458

HEARING DATE(S):
16 February 2010


EX TEMPORE DATE:
16 February 2010

PARTIES:
PM Sulcs and Associates Pty Ltd (Appellant)
Dominic Oliveri (Respondent)

JUDGMENT OF:
McColl JA Young JA Sackville AJA

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT FILE NUMBER(S):
SC 3548/04

LOWER COURT JUDICIAL OFFICER:
Debelle AJ

LOWER COURT DATE OF DECISION:
2 June 2009

LOWER COURT MEDIUM NEUTRAL CITATION:
[2009] NSWSC 485

COUNSEL:
D E Grieve QC (Appellant)
G C Lindsay SC with G P F Rundle (Respondent)

SOLICITORS:
O'Neill Partners (Appellant)
Penelope Purcell Solicitors (Respondent)

CATCHWORDS:
LEAVE TO APPEAL – No question of principle

LEGISLATION CITED:


CATEGORY:
Principal judgment

CASES CITED:
House v The King [1936] HCA 40; (1936) 55 CLR 499
PM Sulcs & Associates Pty Ltd v Daihatsu Australia Pty Ltd [2001] NSWSC 636
PM Sulcs & Associates Pty Ltd v Oliveri [2009] NSWSC 456
PM Sulcs & Associates Pty Ltd v Oliveri (No 2) [2009] NSWSC 485

TEXTS CITED:


DECISION:
Leave to appeal refused with costs.



JUDGMENT:


IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

2009/298458

McCOLL JA

YOUNG JA

SACKVILLE AJA

16 February 2010

PM SULCS & ASSOCIATES PTY LTD v OLIVERI

Judgment ex tempore

1 McCOLL JA: This is an application for leave to appeal from a judgment of Debelle AJ of 2 June 2009: PM Sulcs & Associates Pty Ltd v Oliveri (No 2) [2009] NSWSC 485. In that judgment his Honour dealt with the costs consequences of the findings made in his principal judgment in the matter delivered on 28 May 2009: PM Sulcs & Associates Pty Ltd v Oliveri [2009] NSWSC 456.

2 That principal judgment, in short, concerned the question of the respondent's entitlement, if any, to costs in respect of acting for the applicant in proceedings against Daihatsu Australia Pty Limited which were determined in this Court in earlier proceedings in the applicant's favour in reasons in a judgment of Kirby J: PM Sulcs & Associates Pty Ltd v Daihatsu Australia Pty Ltd [2001] NSWSC 636 (the “Daihatsu proceedings”).

3 I shall not attempt to summarise the numerous issues which arose in the proceedings before Debelle AJ and which were comprehensively dealt with by his Honour in his principal judgment. The statement that the proceedings concerned the entitlement of the respondent, as I have said, if any, to costs in respect of the Daihatsu proceedings is sufficient for present purposes to deal with the application for leave to appeal.

4 The proceedings Debelle AJ determined appear to have been commenced in 2004 and at some stage, not readily apparent from the White Book but certainly by 3 June 2005, a defence and cross-claim had been filed in which, among other matters in the cross-claim, the respondent sought to assert a supplementary agreement concerning an amount of $220,045 which the applicant had paid to the respondent.

5 It was alleged in the cross-claim as summarised by his Honour (at [72] of his principal judgment), that that amount was paid in consideration of the respondent agreeing to defer payment of his fees and was to be in addition to any costs otherwise payable to the respondent. In due course his Honour rejected that claim.

6 On 3 June 2005, the respondent's solicitors forwarded a letter expressed to be in terms of a Calderbank letter, a characterisation which is not in dispute. It relevantly stated:

“The Defendant/Cross Claimant makes an offer to compromise the proceedings herein on the following terms:

a. Plaintiff/Cross Defendant to pay to the Defendant/Cross Claimant 95% of the entitlement of the Defendant/Cross Claimant to legal costs and disbursements for legal services provided by the Defendant/Cross Claimant to the Plaintiff/Cross Defendant in relation to proceedings instituted by the Plaintiff/Cross Defendant against Daihatsu Australia Pty Ltd, styled ‘P M Sulcs & Associates Ltd v Daihatsu Australia Pty Ltd’ numbered 11489 of 1993 in the Common Law Division of the Supreme Court of New South Wales (‘the Daihatsu proceedings’), with such entitlement of the Defendant/Cross Claimant to legal costs and disbursements for legal services provided by the Defendant/Cross Claimant to the Plaintiff/Cross Defendant in relation to the Diahatsu [sic] proceedings to be determined by a Supreme Court costs assessor or any judicial officer in the proceedings herein ...”

7 On 17 June 2005, the applicant's then solicitors sought clarification of the letter complaining it was incapable of being accepted in its current terms as it was ambiguous in its meaning and likely effect. Clarification was sought as follows:

“The Defence and Cross-Claim, upon which we understand your client intends to rely, claim that he is entitled to recover fees pursuant to various costs agreements and as an alternative that he is entitled to an assessment of quantum of remuneration on a quantum meruit basis. It is nor clear from the offer made by your client as to whether or not the amount your client is prepared to receive is a percentage of costs assessed pursuant to the alleged costs agreement or a percentage of the costs assessed as being the appropriate quantum under a quantum meruit.”

8 The respondent's solicitors informed the applicant's solicitors on 1 July 2005 that the offer was that the respondent was prepared to accept from the applicant 95 percent of the costs assessed on a quantum meruit base as determined by either a judicial officer or a costs assessor. That offer remained open for 28 days from the date of that letter.

`

9 There matters apparently rested. The hearing proceeded before Debelle AJ in May 2009. His Honour rejected the respondent's submission that there was a written agreement between the parties as to the bill of costs but accepted that, nevertheless, the respondent was entitled to costs to be assessed on a quantum meruit basis. The respondent then sought to rely upon the Calderbank letter, as explained in the letter of 1 July 2005, to found a claim for indemnity costs on and from the latter date.

10 The applicant sought to resist that application on the basis that the Calderbank offer was ambiguous because it did not make clear what if anything was to happen in so far as the claim advanced in the cross-claim in relation to the alleged supplementary agreement was concerned.

11 The primary judge found that when one had regard to the exchange of correspondence in the context that the respondent's bill of costs as submitted to the costs assessor had been amended to exclude the sum of $220,045 referred to in the supplementary agreement, there was no ambiguity. He acceded to the respondent’s application.

12 Mr D E Grieve of Queen's Counsel who appears for the applicant on the application for leave to appeal but did not appear at trial, complained that his Honour erred because the ambiguity in the Calderbank letter of which the applicant complained was not cured by the exchange of correspondence. Mr Grieve accepted, however, that the Calderbank letter was open to the interpretation that the claim was for the $1.6 million as his Honour concluded.

13 Mr Grieve also originally sought to advance a second argument that the primary judge ought not to have ordered the applicant to bear all of the costs of the proceedings below. He accepted that that argument had not been put to his Honour and the proposition that in those circumstances no error on a new ground could be demonstrated in respect of his Honour's costs judgment.

14 His Honour's decision as to the costs of the proceedings was one which his Honour made in the exercise of his discretion on a matter of practice and procedure. It is necessary in order for the applicant to attract intervention by this Court to demonstrate that his Honour's discretion miscarried in the sense referred to in House v The King [1936] HCA 40; (1936) 55 CLR 499 and numerous authorities to that effect.

15 In my view the applicant has not identified any error in the primary judge's exercise of his discretion. I would refuse leave to appeal with costs.

16 YOUNG JA: I agree.

17 SACKVILLE AJA: I also agree. I would only add this. The ambiguity identified by Mr Grieve appears not to have been a matter that concerned the solicitors acting for the applicant, in that the requested clarification did not identify what is now said to be the alleged ambiguity. Nor was there any evidence adduced to suggest that the letter in any way had been misunderstood or had been given a construction by those acting for the applicant other than the one that Mr Grieve conceded was open. I therefore agree with the orders proposed by the presiding judge.

18 McCOLL JA: The orders of the Court will be as I have stated.

**********

LAST UPDATED:
18 February 2010