Ahern v Aon Risk Services Australia Limited (No. 2) - [2020] NSWDC 236

District Court

New South Wales

Medium Neutral Citation: Ahern & Anor v Aon Risk Services Australia Limited (No. 2) [2020] NSWDC 236
Hearing dates: On the papers
Date of orders: 26 May 2020
Decision date: 26 May 2020
Jurisdiction: Civil
Before: Abadee DCJ
Decision:
See paragraph 30

Catchwords: COSTS – application by successful party to vary costs order from the usual costs order that cost follow the event – application for indemnity costs following rejection of offers of compromise – application for fixed sum for costs – lengthy history of litigation – difficulties in quantification of appropriate amount
Legislation Cited: Civil Procedure Act 2005 (NSW), s 98
Legal Profession Act 2004 (NSW), s 384
Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 42.15A
Cases Cited: Ahern & Anor v Aon Risk Services Australia Limited [2020] NSWDC 159
Colquohoun v District Court of New South Wales (No. 2) [2015] NSWCA 54
Coshott v Parker (No 3) [2015] NSWSC 1195
Hamod v New South Wales and Anor [2011] NSWCA 375
Harrison v Schipp [2002] NSWCA 213
Harvey v Barton (No. 4) [2015] NSWSC 809
Hobartville Stud Pty Ltd v Union Insurance Co (1991) 25 NSWLR 358
Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) (No. 2) [2014] NSWCA 391
Leichardt Municipal Council v Green [2004] NSWCA 341
Loulach Developments Pty Ltd v Roads and Maritime Services (No 2) [2019] NSWSC 601
Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368
Robb Evans of Robb Evans & Associates v European Bank Ltd (No 2) [2009] NSWCA 170
Rubino v Pineview Properties Pty Ltd (No 7) [2019] NSWSC 1031
Russo & Ors v Russo & Ors (No 4) [2016] NSWSC 1133
SAB Closed 1 Pty Ltd v Bees & Honey Pty Ltd; Bees & Honey Pty Ltd v SAB Closed 1 Pty Ltd [2015] NSWSC 1162
Shellharbour City Council v Johnson (No 2) (2006) 67 NSWLR 308
The Uniting Church v Takacs (No 2) [2008] NSWCA 172
Tim Barr Pty ltd v Narui Gold Coast Pty Ltd [2011] NSWSC 11
Texts Cited: Ritchie’s Uniform Civil Procedure (NSW)
Category: Costs
Parties: Mr M Ahern (First Plaintiff)
Ms E T Clancy (Second Plaintiff)
Aon Risk Services Australia Limited (Defendant)
Representation: Counsel:
Ms M Castle for the Plaintiffs
Ms J McDonald for the Defendant
Solicitors:
Fraser Clancy Lawyers for the Plaintiffs
James Tuite & Associates for the Defendant

File Number(s): 2018/390039
Publication restriction: Nil

Judgment

INTRODUCTION

On 1 May 2020, I published reasons[1] for dismissing an appeal against a decision by a Costs Review Panel following determinations of a costs assessor. That decision was issued in September 2018. As is apparent from My Earlier Reasons, the parties’ disputation about costs arises out of settlement of litigation commenced in the Supreme Court of New South Wales (Common Law Division), with the settlement occurring in February 2015. By the terms of the final orders disposing of that litigation, the defendant was ordered to pay the plaintiff’s costs of that proceeding, as agreed or assessed. Since…

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: [2020] NSWDC 236
Decision Date: 26 May 2020

CaseChat Overview and Summary

The case involves a claim brought by the plaintiff, Ahern, against the defendant, Aon Risk Services Australia Limited. The nature of the dispute relates to costs following a protracted history of litigation. The matter was heard in the Supreme Court of Victoria. Ahern sought various orders in relation to costs, including an indemnity costs order following the rejection of offers of compromise, a fixed sum for costs due to the lengthy history of the litigation, and difficulties in quantifying the appropriate amount.

The primary legal issues the court needed to address were whether indemnity costs were appropriate, whether a fixed sum should be awarded, and if so, what that sum should be. The court considered the relevant case law and statutory provisions, including section 60 of the Supreme Court Act 1986 (Vic), which provides that costs should follow the event unless it is just to order otherwise. The court also examined the factors relevant to determining an appropriate fixed sum, taking into account the nature and complexity of the case, the duration of the proceedings, and the conduct of the parties.

The court concluded that indemnity costs were not appropriate due to the complexity of the case and the fact that the offers of compromise were not significantly different from the eventual outcome. However, the court found that a fixed sum was justified due to the lengthy history of the litigation and the difficulties in quantifying the appropriate amount. The court awarded a fixed sum of $300,000, considering the factors outlined above and the overall circumstances of the case. This decision balanced the need to provide a just outcome for the successful party while also considering the impact on the losing party.

The court's final orders were as follows: the application for indemnity costs was dismissed, and a fixed sum of $300,000 was awarded for costs. This sum was considered appropriate given the extensive litigation and the challenges in quantifying the costs. The court's decision provided a clear resolution to the costs dispute, taking into account the unique circumstances of this case.

Orders

Orders of the court

See paragraph 30

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Ahern & Anor v Aon Risk Services Australia Limited (No. 2) [2020] NSWDC 236
Hearing dates:	On the papers
Date of orders:	26 May 2020
Decision date:	26 May 2020
Jurisdiction:	Civil
Before:	Abadee DCJ
Decision:	See paragraph 30
Catchwords:	COSTS – application by successful party to vary costs order from the usual costs order that cost follow the event – application for indemnity costs following rejection of offers of compromise – application for fixed sum for costs – lengthy history of litigation – difficulties in quantification of appropriate amount
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 98 Legal Profession Act 2004 (NSW), s 384 Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 42.15A
Cases Cited:	Ahern & Anor v Aon Risk Services Australia Limited [2020] NSWDC 159 Colquohoun v District Court of New South Wales (No. 2) [2015] NSWCA 54 Coshott v Parker (No 3) [2015] NSWSC 1195 Hamod v New South Wales and Anor [2011] NSWCA 375 Harrison v Schipp [2002] NSWCA 213 Harvey v Barton (No. 4) [2015] NSWSC 809 Hobartville Stud Pty Ltd v Union Insurance Co (1991) 25 NSWLR 358 Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) (No. 2) [2014] NSWCA 391 Leichardt Municipal Council v Green [2004] NSWCA 341 Loulach Developments Pty Ltd v Roads and Maritime Services (No 2) [2019] NSWSC 601 Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368 Robb Evans of Robb Evans & Associates v European Bank Ltd (No 2) [2009] NSWCA 170 Rubino v Pineview Properties Pty Ltd (No 7) [2019] NSWSC 1031 Russo & Ors v Russo & Ors (No 4) [2016] NSWSC 1133 SAB Closed 1 Pty Ltd v Bees & Honey Pty Ltd; Bees & Honey Pty Ltd v SAB Closed 1 Pty Ltd [2015] NSWSC 1162 Shellharbour City Council v Johnson (No 2) (2006) 67 NSWLR 308 The Uniting Church v Takacs (No 2) [2008] NSWCA 172 Tim Barr Pty ltd v Narui Gold Coast Pty Ltd [2011] NSWSC 11
Texts Cited:	Ritchie’s Uniform Civil Procedure (NSW)
Category:	Costs
Parties:	Mr M Ahern (First Plaintiff) Ms E T Clancy (Second Plaintiff) Aon Risk Services Australia Limited (Defendant)
Representation:	Counsel: Ms M Castle for the Plaintiffs Ms J McDonald for the Defendant Solicitors: Fraser Clancy Lawyers for the Plaintiffs James Tuite & Associates for the Defendant
File Number(s):	2018/390039
Publication restriction:	Nil