Bamber v Hartman Pacific Pty Ltd; Bamber v Hartman Pacific Pty Ltd (No 2)

1. [1]

   On 29 September 2017, I gave judgment in Bamber v Hartman Pacific Pty Ltd; Bamber v Hartman Pacific Pty Ltd [2017] NSWSC 1318, dismissing Mr and Mrs Bamber’s claims. There was an issue between the parties as to the appropriate costs order, Hartman Pacific Pty Ltd seeking an indemnity costs order in its favour, from 27 April 2017, relying on two offers of compromise it made by email on that day at 8:06am, the trial being due to commence on 1 May 2017.

2. [2]

   Hartman’s offers were annexed to an affidavit sworn by its solicitor Mr Partridge. What was offered in each case was an offer of compromise that judgment be entered in favour of Hartman, with “no order as to costs”. Each offer was open only until 10am on 1 May 2017 and was said to be made in accordance with r 20.26 of the Uniform Civil Procedure Rules 2005 (NSW). In the event that it failed to comply with those requirements, it was to be relied on as a Calderbank v Calderbank [1975] 3 All ER 333 offer.

3. [3]

   Given the conclusions reached in the September judgment, there is no question that Mr and Mrs Bamber would have been better off if they had accepted these offers, even though they were put on a “walk away” basis. Nor can it doubted that by 27 April, the Thursday before the commencement of the trial, significant costs had been incurred, which Hartman was offering to forego. Such a “walk away” offer can involve real compromise: Dean v Stockland Property Management Pty Ltd & Anor (No 2) [2010] NSWCA 141. I am satisfied that they did in this case.

4. [4]

   For Hartman it was contended that the offers were served in accordance with rr 20.26 and 51.47. It having obtained judgment no less favourable than its offers, under r 42.15A, Mr and Mrs Bamber should be ordered to pay its costs on an indemnity basis, there being in the circumstances no reason why the Court should otherwise order.

5. [5]

   Rule 20.26(5) provides that:

6. [6]

   Even offers made close to trial, which provide only a short time for acceptance, may be reasonable. In Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd (No 2) [2008] NSWCA 85 it was observed at [20] – [21]:

7. [7]

   On 27 April 2017, Hartman also served a statement of final issues in dispute, which provided:

8. [8]

   That undoubtedly drew to the attention of Mr and Mrs Bamber and those who advised them, the difficulties confronting them in the litigation.

9. [9]

   In resisting the order sought, Mr and Mrs Bamber relied on r 20.26(4), which provides:

10. [10]

    It was argued for Mr and Mrs Bamber, that the time that the offer was made precluded it being put to Mr and Mrs Bamber, who live in England and arrived in Australia only on Saturday 29 April, until Sunday 30 April. While there was no evidence led about this, it was not put in issue by Hartman.

11. [11]

    It was also argued that Hartman’s evidence about its manufacturing process, on which much of the judgment hinged, had not to that point been disclosed to Mr and Mrs Bamber. That was also not challenged and accorded with what had been revealed on the first day of the trial, namely, that while experts’ reports had been served, witness statements had not, nor had notice been given of who was to be called.

12. [12]

    In those circumstances, it was argued that it could not be concluded that Hartman had, at the time its offers were made, given Mr and Mrs Bamber particulars necessary to permit them to assess the reasonableness of those offers. In the result, neither offer complied with r 20.26, nor could orders be made on a Calderbank basis, that also requiring that it be established that it was unreasonable for Mr and Mrs Bamber not to have accepted them: Miwa Pty Ltd v Siantan Properties (No 2) [2011] NSWCA 344 at [8].

13. [13]

    In all of these circumstances I am satisfied that Mr and Mrs Bamber’s submissions must be accepted.

14. [14]

    It was most unusual that Hartman had not disclosed the evidence that it proposed to call prior to the hearing. It seems that neither party sought directions about the service of lay evidence, but Hartman having decided not to reveal what evidence it would lead prior to trial, it cannot now justly be concluded that in those circumstances, the offers it made only on 27 April complied with r 20.26. Nor can it be concluded that they provide a just basis for an order for indemnity costs to be made in Hartman’s favour, on a Calderbank basis.

15. [15]

    The offers were open only for a short time, during much of which Mr and Mrs Bamber were travelling to Australia. They were made without Hartman having disclosed the evidence which led to it successfully defending the claims. In those circumstances, it cannot be concluded that Mr and Mrs Bamber were in a position to assess the reasonableness of the offers; that it was open for a reasonable period; or that it was unreasonable for them to have been rejected.

16. [16]

    In the result there can be no departure from the usual costs order.

Order

1. [17]

   For those reasons, I order that:

   1. (1)

      Mr and Mrs Bamber pay Hartman’s costs, as agreed or assessed.

   2. (2)

      All exhibits and subpoenaed material may be returned forthwith; any exhibits returned must be retained intact by the party or person that produced the material until the expiry of the time to file an appeal, or until any appeal has been determined.