Shoveller v Dak-Wal Constructions Pty Ltd (No 4) [2021] NSWSC 509

Shoveller v Dak-Wal Constructions Pty Ltd (No 4) [2021] NSWSC 509

The plaintiff's $2,850,000 offer was a real compromise because damages had already been agreed at $3,000,000 and contributory negligence was not in issue. Dak-Wal also had contribution offers from the Owners and Akota and possessed the information necessary to assess its liability, including knowledge attributable through Mr Squires. It was therefore unreasonable for Dak-Wal not to accept the plaintiff's offer along with the contribution offers. The orders of 8 April 2021 also did not accurately manifest the Court's intention as to the cross-defendants and should be amended.

Jurisdiction
Australia
Judgment Date
11 May 2021
Procedural Posture
Common Law; Consequential Orders / Post Judgment Applications for Costs and Amended Orders Following the Principal Judgment
Outcome
Orders varied and amended; indemnity costs ordered from specified dates; otherwise proceedings dismissed.
Legal Topics
['calderbank Letters' 'offers to Contribute' 'indemnity Costs' 'multiple Defendants' 'amendment of Orders' 'slip Rule' 'bullock Orders']
['costs' 'civil Procedure' 'judgments and Orders'] ['calderbank Letters' 'offers to Contribute' 'indemnity Costs' 'multiple Defendants' 'amendment of Orders' 'slip Rule' 'bullock Orders']

Case Brief

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Procedural Posture

Common Law; Consequential Orders / Post Judgment Applications for Costs and Amended Orders Following the Principal Judgment

Legal Issues

  1. 1 ['Whether the orders issued on 8 April 2021 should be varied to include the agreed damages amount and to correct the identity of cross-defendants.' 'Whether the plaintiff, the second defendant and the third to seventh defendants should receive indemnity costs against Dak-Wal following Calderbank letters and Offers to Contribute.' "Whether Dak-Wal acted unreasonably in not accepting the plaintiff's offer together with the contribution offers from the Owners and Akota."]

Ratio Decidendi

The plaintiff's $2,850,000 offer was a real compromise because damages had already been agreed at $3,000,000 and contributory negligence was not in issue. Dak-Wal also had contribution offers from the Owners and Akota and possessed the information necessary to assess its liability, including knowledge attributable through Mr Squires. It was therefore unreasonable for Dak-Wal not to accept the plaintiff's offer along with the contribution offers. The orders of 8 April 2021 also did not accurately manifest the Court's intention as to the cross-defendants and should be amended.

Court Disposition

Orders varied and amended; indemnity costs ordered from specified dates; otherwise proceedings dismissed.

Orders

  • ['Vary Order 1, issued in these proceedings on 8 April 2021, by inserting after the words "seventh defendants", the phrase "in the sum of $3,000,000.00 (the \'judgment sum\')".' 'Delete from Orders 3 and 4, issued in these proceedings on 8 April 2021, the words "first defendant/second cross-defendant" in Order 3 and...