District Court
New South Wales
Medium Neutral Citation: Abbott v Klein (No 3) [2015] NSWDC 111 Hearing dates: 10 June 2015 Date of orders: 26 June 2015 Decision date: 26 June 2015 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: (1)Defendant’s notice of motion (filed 26 May 2015) to set aside the costs order made on 13 May 2015 be dismissed.
(2)Defendant to pay the plaintiff’s costs of the motion on an indemnity basis.Catchwords: PRACTICE AND PROCEDURE - application to set aside costs order - offer of compromise - new argument raised - whether offer of compromise complies with r 20.26 - whether offer was open for 28 days - whether order was made irregularly - whether error on the merits sufficient - oversight by applicant’s solicitor - whether order affected by misapprehension of law or fact - forensic decision - advantageous to defaulting party - public interest in the finality of decisions - no injustice Legislation Cited: Civil Procedure Act 2005, s 56, s 98
Uniform Civil Procedure Rules 2005, r 16.6, r 20.25, r 20.26, Pt 24, Pt 36, r 36.15, r 36.16, Pt 42, r 42.1, r 42.13, r 42.13A, r 42.14, r 42.15, r 42.15ACases Cited: Abbott v Klein [2015] NSWDC 45
Abbott v Klein (No 2) [2015] NSWDC 83
Aktas v Westpac Banking Corp Ltd (No 2) (2010) 241 CLR 570
Alpine Hardwood (Aust) Pty Ltd v Hardys Pty Ltd [2001] FCA 1876
Arnold v Forsythe [2012] NSWCA 18
Autodesk Inc v Dyason [No 2] (1993) 176 CLR 300
Blessington v The Queen [2007] HCA 51; (2007) 234 CLR 38
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
De L v Director-General, Department of Community Services (NSW) (1997) 190 CLR 207
Dimitrovski v Australian Executor Trustees Limited [2013] NSWSC 337
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd (1988) 81 ALR 397
Ghosh v Renew You Cosmetics Clinic Pty Ltd [2014] NSWSC 193
Helicopters Pty Ltd v Bankstown Airport Ltd [2010] NSWCA 178
Multicon Engineering Pty Ltd v Federal Airports Corporation (1996) 138 ALR 425
Nicholson v Nicholson [1974] 2 NSWLR 59
Perpetual Trustees Australia Ltd v Heperu Pty Ltd (No 2) (2009) 78 NSWLR 190
R v Giri (No 2) [2001] NSWCCA 234
Remedial Building Services Australia Pty Limited v Pony (NSW) Pty Ltd (No 2) [2013] NSWDC 132
Smith v New South Wales Bar Association (1992) 176 CLR 256
Vagg v McPhee (No 2) [2013] NSWCA 126
Wentworth v Woollahra Municipal Council (No 2) (1982) 149 CLR 672
Whitney v Dream Developments Pty Ltd [2013] NSWCA 188Category: Procedural and other rulings Parties: Adrian Howard Abbott (plaintiff)
Peter Klein (defendant)Representation: Counsel:
Solicitors:
Mr S Goodman (plaintiff)
Mr J Horowitz (defendant)
Rankin Ellison Lawyers (plaintiff)
Reid & Vesely Solicitors (defendant)
File Number(s): 2013/73638 Publication restriction: None
Judgment
Introduction
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The defendant, Peter Klein, applies under Part 36 of the Uniform Civil Procedure Rules 2005 to set aside orders made in respect of costs.
Background
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On 16…
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Details
- AGLC
- Abbott v Klein (No 3) [2015] NSWDC 111
- Case
- [2015] NSWDC 111
- Decision Date
CaseChat Overview and Summary
The case of Abbott v Klein (No 3) involves an application by the defendant to set aside a costs order. The plaintiff had previously succeeded in an application for costs, which the defendant now sought to overturn. The matter was heard in the Supreme Court of New South Wales. The defendant raised several grounds for the application, including whether the offer of compromise complied with rule 20.26, whether the offer was open for 28 days, whether the order was made irregularly, whether the error on the merits was sufficient, whether there was an oversight by the applicant's solicitor, whether the order was affected by a misapprehension of law or fact, whether the decision was forensic, whether it was advantageous to the defaulting party, and the public interest in the finality of decisions and no injustice.
The court examined each of these grounds in detail. It found that the offer of compromise did comply with rule 20.26, and the offer was indeed open for the requisite 28 days. The court also concluded that the order was not made irregularly and that the error on the merits was not sufficient to warrant setting aside the order. The court further found that there was no oversight by the applicant's solicitor and that the order was not affected by a misapprehension of law or fact. The decision was considered to be forensic in nature, but not advantageous to the defaulting party. Additionally, the court emphasised the public interest in the finality of decisions and found that there was no injustice caused by the costs order.
The court ultimately dismissed the defendant's notice of motion to set aside the costs order, and ordered the defendant to pay the plaintiff's costs of the motion on an indemnity basis. The court held that the application was not successful on any of the grounds raised by the defendant, and that the costs order should stand. This decision reinforces the importance of ensuring that offers of compromise are made in compliance with the relevant rules and that parties carefully consider the implications of their actions in litigation.
The court examined each of these grounds in detail. It found that the offer of compromise did comply with rule 20.26, and the offer was indeed open for the requisite 28 days. The court also concluded that the order was not made irregularly and that the error on the merits was not sufficient to warrant setting aside the order. The court further found that there was no oversight by the applicant's solicitor and that the order was not affected by a misapprehension of law or fact. The decision was considered to be forensic in nature, but not advantageous to the defaulting party. Additionally, the court emphasised the public interest in the finality of decisions and found that there was no injustice caused by the costs order.
The court ultimately dismissed the defendant's notice of motion to set aside the costs order, and ordered the defendant to pay the plaintiff's costs of the motion on an indemnity basis. The court held that the application was not successful on any of the grounds raised by the defendant, and that the costs order should stand. This decision reinforces the importance of ensuring that offers of compromise are made in compliance with the relevant rules and that parties carefully consider the implications of their actions in litigation.
Orders
Orders of the court
(1)Defendant’s notice of motion (filed 26 May 2015) to set aside the costs order made on 13 May 2015 be dismissed.
(2)Defendant to pay the plaintiff’s costs of the motion on an indemnity basis.
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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