Costs, Finality, Appeals and Enforcement. Civil and Criminal Procedure Skills.

Please mark my answer

Banana Flood: Hypothetical Scenario for Qu 1, 2 and 3 A single judge of the Supreme Court of NSW, Justice Clever has handed down a judgment in favour of the plaintiff, Stingy Supermarkets P/L (a NSW supermarket chain), requiring the defendant, Bad Bananas P/L (a NSW based importer of Queensland bananas), to pay the plaintiff $2million in damages for breaching a contract to deliver bananas between September 2021 and March 2022. The plaintiff paid $3million in October 2021 and the defendant was contracted to deliver 500,000 bananas but only delivered 100,000. The defendant argued that it was unable to make the full delivery due to the floods in Queensland and that it paid the same amount to purchase the 100,000 bananas as it would usually have paid to buy 500,000. Furthermore, the price of bananas was so high in the supermarkets that the defendant believed that the plaintiff had earned nearly the same amount of money selling 100,000 bananas as it would have selling 500,000 in a normal year. There was a force majeure clause in the contract saying the contract was void in case of force majeure. On 15 April 2024, the judge held that the Queensland floods did not constitute a force majeure under the contract because they did not render it impossible for Bad Bananas P/L to fulfil the contract. However, the court noted that there were provisions in the contract for significant market price variations, which should have been triggered by the defendant to provide it with relief but were not due to its legal naivety. The court ordered the defendant to pay the $1million to the plaintiff. The judge has also invited the parties to make submissions as to costs. In this regard, it is not currently known by the judge but, on 15 January 2023, before commencing proceedings, the plaintiff (Stingy Supermarkets P/L) offered to accept $800,000 in full satisfaction of its claim. For Question 1, you act for Bad Bananas P/L (the defendant). your client is outraged at having lost the case and wants to appeal. Note that your client is a small operation with no in house legal department and no legal training. 1. Assume it is 16 April 2024 and judgment was handed down yesterday, draft a brief letter of advice to your client setting out their appeal rights, the prospects of an appeal succeeding (assume they are reasonable - you don't have to research contract law on force majeure), your client's position regarding costs and any other relevant procedural issues. Don't forget to write suitably for your audience. For Questions 2 and 3, you act for Stingy Supermarkets P/L (the plaintiff) which wants the $2million awarded in its favour immediately and an order for costs even though it knows Bad Bananas P/L wants to appeal. In relation to Questions 2 and 3, note that your client is a large organisation with in-house legal counsel who used to work for your firm so you are writing to an experienced legal audience. 2. Draft a brief letter of advice to your client, Stingy Supermarkets P/L, on the relevant procedures for enforcing the judgment and your advice as to costs. In your advice, ensure you discuss what impact an appeal by Bad Bananas P/L is likely to have on enforcement proceedings including assessing the prospects an appeal may have of succeeding. Also, consider the offer for settlement in your advice. Don't forget to write suitably for your audience. 3. Prepare written submissions to the court for the plaintiff, Stingy Supermarkets P/L, seeking costs. [Hint: consider the effect of the 15 January 2023 settlement offer]. 4. Civil litigation is very complex for self-represented litigants attempting to run their own trial. Discuss having regard how legal services or relevant education in relation to the law could be made more available and/or affordable to litigants.

Question 1: Letter of Advice to Bad Bananas P/L (Defendant)

Bad Bananas P/L [Client's Address] [Date]

Dear [Client's Name],

Re: Appeal Rights and Prospects

I write to advise you on your appeal rights following the recent judgment handed down by Justice Clever in the matter of Stingy Supermarkets P/L v Bad Bananas P/L. Firstly, you have a right to appeal the decision to a higher court. In this case, the appropriate court for appeal would be the Court of Appeal of the Supreme Court of NSW.

Regarding the prospects of success on appeal, there are reasonable grounds to argue for an appeal based on the judge's interpretation of the force majeure clause and the failure to trigger provisions for market price variations. While I have not conducted a detailed analysis of contract law in this matter, these points present potential avenues for appeal.

It is important to note that as a small operation without legal expertise, the appeal process can be complex and costly. I recommend seeking legal representation to navigate this process effectively.

Regarding costs, you may be liable to pay the costs of the trial, as well as potential costs of the appeal if unsuccessful. It is advisable to discuss the potential costs implications with legal counsel.

If you wish to proceed with an appeal, please let me know, and I can assist you in engaging legal representation to further assess the merits of the appeal and guide you through the process.

Please do not hesitate to contact me should you require further clarification or assistance.

Yours sincerely,

[Your Name] [Your Contact Information]

Question 2: Letter of Advice to Stingy Supermarkets P/L (Plaintiff)

Stingy Supermarkets P/L [Client's Address] [Date]

Dear [Client's Name],

Re: Enforcement of Judgment and Costs

Following the judgment in your favor against Bad Bananas P/L, I write to advise you on the relevant procedures for enforcing the judgment and your position regarding costs.

To enforce the judgment, you may seek the assistance of the NSW Sheriff's Office to seize and sell the defendant's property to recover the awarded amount. However, given the potential appeal by Bad Bananas P/L, enforcement proceedings may be delayed. It is advisable to await the outcome of any appeal before initiating enforcement action.

Regarding costs, the court may award you costs for the trial and potentially for the appeal if Bad Bananas P/L's appeal is unsuccessful. However, you should be aware that costs are at the court's discretion, and the court may take into account your earlier offer to accept $800,000 in full satisfaction of your claim.

In light of the potential appeal, I recommend maintaining readiness to enforce the judgment once the appeal process is concluded. Additionally, it may be prudent to prepare for potential costs orders by documenting all relevant expenses incurred in the litigation.

If you require further advice or assistance, please do not hesitate to contact me.

Yours sincerely,

[Your Name] [Your Contact Information]

Question 3: Written Submissions for Costs

[In the Supreme Court of New South Wales Common Law Division]

Plaintiff: Stingy Supermarkets P/L Defendant: Bad Bananas P/L

SUBMISSIONS ON COSTS

The plaintiff, Stingy Supermarkets P/L, respectfully submits that costs should be awarded in its favor for the proceedings before this Honourable Court.

The plaintiff notes that on 15 January 2023, prior to commencing proceedings, it made an offer to the defendant, Bad Bananas P/L, to accept $800,000 in full satisfaction of its claim. This offer was not accepted by the defendant.

The plaintiff further notes that the court has already found in its favor and awarded damages in the amount of $1million against the defendant.

The plaintiff asserts that the costs of the proceedings should be borne by the defendant, considering the defendant's failure to accept the reasonable settlement offer made by the plaintiff.

In conclusion, the plaintiff respectfully requests that costs be awarded in its favor, to be assessed on a party-party basis.