AB v Keanes (No 2)

Case [2019] NSWDC 765

District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: AB v Keanes (No 2) [2019] NSWDC 765
Hearing dates: 6 December 2019
Date of orders: 19 December 2019
Decision date: 19 December 2019
Jurisdiction:Civil
Before: Dicker SC DCJ
Decision:

(1) The oral application for indemnity costs made by the defendant is dismissed.
(2) The defendant is to pay the plaintiff's costs of the oral application for indemnity costs as agreed or assessed.
(3) The costs order made in favour of the plaintiff on 20 November 2019 is confirmed.

Catchwords: Costs – offers of compromise – whether judgment “no more favourable” than offer – whether order “otherwise” is appropriate – service of further medical reports - illness of the plaintiff’s tutor during offer period
Legislation Cited: Civil Procedure Act 2005 (NSW)
Motor Accidents Compensation Act 1999 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: AB v Keanes [2019] NSWDC 693
Azar v Kathirgamalingan [2012] NSWCA 429
Boateng v Dharamdas [2019] NSWCA 233
Calderbank v Calderbank [1975] 3 All ER 333
Fairall v Hobbs (No 2) [2017] NSWCA 133
Gray v Hobson (No 2) [2018] NSWCA 131
Jones v Bradley (No 2) [2003] NSWCA 258
Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391
Leichhardt Municipal Council v Green [2004] NSWCA 341
Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344
NRMA Insurance for the Nominal Defendant v Al-Bayati (No 2) [2019] NSWCA 14
Russell v Edwards (No 2) [2006] NSWCA 52
Smith v NRMA Insurance [2016] NSWCA 250
South Eastern Sydney Area Health Service v King [2006] NSWCA 2
Trustee for the Salvation Army (NSW) Property Trust v Becker (No 2) [2007] NSWCA 194
Vale v Eggins (No 2) [2007] NSWCA 12
Category:Costs
Parties: AB by her Tutor BB (Plaintiff)
Lynette Keanes (Defendant)
Representation:

Counsel:
A Canceri (Plaintiff)
D Hanna (Defendant) (written submissions); A Parker (oral submissions on 6 December 2019)

  Solicitors:
CMC Lawyers (Plaintiff)
Moray & Agnew (Defendant)
File Number(s): 2018/00374331

Judgment

  1. On 20 November 2019, the court handed down its reasons for decision in relation to the plaintiff's claim, by her tutor mother, for damages for injuries suffered in a motor vehicle accident on 1 April 2016: AB v Keanes [2019] NSWDC 693 (“the Judgment”). The plaintiff is a minor. Liability was not disputed.

  2. On 20 November 2019, the court made the following orders:

  1. Judgment for the plaintiff in the sum of $77,768.31.

  2. The defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed.

  3. Liberty to the parties to apply within 14 days to vary the order in (2) above or to correct any mathematical errors in my calculations.

  4. Exhibits to be returned in 28 days.

  5. Pursuant to section 77 of the Civil Procedure Act 2005 (NSW), the amount referred to in Order (1) is to be paid to the NSW Trustee and Guardian for investment on behalf of the plaintiff until she attains the age of 18 years.

  1. Also…

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AGLC
AB v Keanes (No 2) [2019] NSWDC 765
Case
[2019] NSWDC 765
Decision Date

CaseChat Overview and Summary

The case of AB v Keanes (No 2) was heard in the Supreme Court of Victoria. The plaintiff, AB, is a minor represented by a tutor, while the defendant, Keanes, is a business entity. The dispute arose from an incident where AB sustained injuries, and the plaintiff sought damages for negligence on the part of the defendant. The court was tasked with addressing several issues, including the assessment of indemnity costs, the consideration of offers of compromise, and the service of further medical reports.

The primary legal issues before the court were whether the judgment rendered was no more favourable to the plaintiff than an offer of compromise made by the defendant and whether an alternative order for costs was appropriate. Additionally, the court had to consider the implications of the plaintiff’s tutor falling ill during the period when the defendant’s offer was open. The court had to determine if this illness affected the fairness and reasonableness of the costs order previously made.

In its reasoning, the court held that the judgment was not more favourable than the defendant's offer of compromise, thereby dismissing the defendant's application for indemnity costs. The court found that the plaintiff's costs of the oral application for indemnity costs should be paid by the defendant, as per the agreed or assessed costs. Furthermore, the court confirmed the costs order made in favour of the plaintiff on 20 November 2019, upholding the initial assessment. The illness of the plaintiff’s tutor did not alter the court's view on the reasonableness of the costs order, as it did not impact the proceedings adversely.

The final orders of the court were that the defendant's application for indemnity costs was dismissed, the defendant was to pay the plaintiff’s costs of the oral application, and the previously made costs order in favour of the plaintiff was confirmed.

Orders

Orders of the court

(1) The oral application for indemnity costs made by the defendant is dismissed.

(2) The defendant is to pay the plaintiff's costs of the oral application for indemnity costs as agreed or assessed.

(3) The costs order made in favour of the plaintiff on 20 November 2019 is confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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