UBS AG v Tyne [2018] HCA 45; (2018) 265 CLR 77 (just in case you haven't already read it)

Clayton v Bant [2020] HCA 44; (2020) 385 ALR 41, 95 ALJR 34(just in case you haven't already read it).

Attwells v Jackson Lalic [2016] HCA 16; (2016) 259 CLR 1

About Life Pty Ltd v Maddocks Lawyers (No 2) [2021] NSWSC 1671 (17 December 2021) - indemnity costs following Calderbank letter complete with judicial instructions on how not to write settlement offers in para 10.

Heath v Greenacre Business Park Pty Ltd [2016] NSWCA 34

Using the above case laws as examples please answer the following senario:

Costs, Finality, Appeals and Enforcement. Civil and Criminal Procedure Skills. As the final civil procedure tutorial, this tutorial will also provide an opportunity to prepare for the assignment and examination.

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.