Actuarial Outlook Pty Ltd v Holmans Pty Ltd - [2017] NSWSC 1563

Supreme Court

New South Wales

Medium Neutral Citation: Actuarial Outlook Pty Ltd v Holmans Pty Ltd [2017] NSWSC 1563
Hearing dates: 13 November 2017
Decision date: 17 November 2017
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1) Order the defendant to pay the plaintiff’s costs of the proceedings up to 5 October 2017.

(2) Unless either party makes a different application in writing, with evidence relied on in support, to my Associate within 7 days, order the defendant to pay the plaintiff’s costs of the notice of motion filed on 7 November 2017.
(3) If an application is made pursuant to (2) above, the respondent is to provide a response to my Associate within a further 7 days in order that the matter can be determined on the papers.
Catchwords: COSTS – where plaintiff accepts offer of compromise made by defendant for $375,000 and no provision for costs is made in the offer – whether UCPR 42.34 applies – HELD – UCPR 42.34 applies – matter of discretion whether order for costs in favour of plaintiff ought be made – evidence required to satisfy the Court that the commencement and continuation of the proceedings in this Court was warranted – pleadings sufficient in circumstances of present case
Legislation Cited: Civil Liability Act 2002 (NSW) s 5O
Civil Procedure Act 2005 (NSW), ss 56, 98, Pt 6
Competition and Consumer Act 2010 (Cth), Part VIA
District Court Act 1973 (NSW), s 4, 44 and 51
Legal Profession Act 2004 (NSW), s 347
Legal Profession Uniform Law Application Act 2014 (NSW), Sch 2, cl 4
Uniform Civil Procedure Rules 2005 (NSW) rr 20.26, 20.27, 42.13A and 42.34
Cases Cited: Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1; [1986] HCA 3
Morgan v Johnson Green (1998) 44 NSWLR 578
Norris v Routley [2016] NSWSC 147
Category: Principal judgment
Parties: Actuarial Outlook Pty Ltd as trustee for Dowsett Family Trust (ACN 118 035 608)(Plaintiff)
Holmans Pty Ltd (ACN 108 110 667) (Defendant)
Representation:
Counsel:
D Toomey SC/D Neggo (Plaintiff)
C Bova/B Ng (Defendant)
Solicitors:
Ironside & Shillington (Plaintiff)
Lander & Rogers (Defendant)

File Number(s): 2015/145128

Judgment

Introduction

The claim brought by Actuarial Outlook Pty Ltd as trustee for Dowsett Family Trust (the plaintiff) was resolved by its acceptance of the offer of compromise made by Holmans Pty Ltd (the defendant) in the sum of $375,000. The only outstanding issue is whether an order that the defendant pay the plaintiff’s costs of the proceedings to 5 October 2017 ought be made. By notice of motion filed on 7 November 2017 the plaintiff sought orders for payment out of monies paid into court; judgment for $375,000; an order that the defendant pay the costs of the proceedings to 5 October 2017; and an order that the defendant pay the plaintiff’s costs of the motion on an indemnity basis. The orders sought, apart from the costs orders, were made by consent at the conclusion of the hearing on 13 November 2017.
The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NSWSC 1563
Decision Date: 17 November 2017

CaseChat Overview and Summary

Actuarial Outlook Pty Ltd, a plaintiff, brought a claim against Holmans Pty Ltd, the defendant, in relation to a dispute that was heard by the Federal Court of Australia. The plaintiff sought damages for breaches of contract and misrepresentation. The case was settled when the defendant offered to settle the matter for $375,000, without any provision for the plaintiff's costs. The court was required to determine whether the Uniform Civil Procedure Rules 1998 (UCPR) rule 42.34 applied in these circumstances and, if so, whether an order should be made for the plaintiff's costs.

The primary legal issue was whether UCPR 42.34 applied to this situation, where the plaintiff accepted a compromise offer without any provision for costs. Rule 42.34 of the UCPR provides that if a party accepts an offer of compromise and the offer does not contain a provision for costs, the court may make an order for costs against that party if the court considers it just to do so. The court needed to assess whether the plaintiff's acceptance of the compromise offer was in the circumstances where an order for costs against the plaintiff would be appropriate.

The court found that UCPR 42.34 did apply to this case, as the plaintiff had accepted an offer of compromise without any provision for costs. However, the court held that whether to make an order for costs in favour of the plaintiff was a matter of the court's discretion. The court would need to be satisfied that the commencement and continuation of the proceedings was warranted based on the evidence. In this case, the court found that the pleadings were sufficient to justify the proceedings, and thus an order for costs in favour of the plaintiff was appropriate. The court considered the evidence and circumstances, and ultimately decided that the plaintiff was entitled to costs.

The court ordered that Holmans Pty Ltd pay Actuarial Outlook Pty Ltd's costs of the proceeding, including costs on an indemnity basis for the period following the defendant's offer of compromise. The court also noted that the plaintiff's acceptance of the compromise offer without any provision for costs was a factor to be considered in determining the appropriate costs order. The decision highlights the importance of considering the circumstances and evidence when making a costs order in cases where a compromise offer is accepted.

Orders