Almario v Varipatis (No. 3) - [2013] NSWSC 93

Supreme Court

New South Wales

Medium Neutral Citation: Almario v. Varipatis (No. 3) [2013] NSWSC 93
Hearing dates: On the papers in chambers
Decision date: 20 February 2013
Jurisdiction: Common Law
Before: Campbell J
Decision:
I revoke Order 3 pronounced on 21st December 2012 and instead order:
3 (a) The defendant to pay the plaintiff's costs of the proceedings except the costs of and incidental to the plaintiff's claim in deceit;
(b) Costs are to be assessed on the ordinary basis up until the end of 19th October 2012; and on an indemnity basis thereafter.
(c) Costs awarded include the costs of the application to vary the costs order pronounced on 21/12/2012.

Catchwords: COSTS - application for variation of costs order - offers of compromise made by the plaintiff in compliance with UCPR 20.26 - whether circumstances justify an order otherwise than in accordance with the usual rule in UCPR 42.14.
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: -Almario v. Varipatis (No. 2) [2012] NSWSC 1578
-Barakat v. Bazdarova [2012] NSWCA 140
-Cheal Industries Pty Ltd, Re; Fitzpatrick v. Cheal [2012] NSWSC 932
-Egan v. Mangarelli (No. 2) [2012] NSWSC 1226
-New South Wales Insurance Ministerial Corp. v. Reeve (1993) 42 NSWLR 100
-Morgan v. Johnson (1998) 44 NSWLR 578
-Old v. McInnes and Hodgkinson [2011] NSWCA 410
-Rail Corporation NSW v. Vero Insurance Limited (No. 2) [2012] NSWSC 926
-Vieira v. O'Shea (No. 2) [2012] NSWCA 121
-Ziliotto v. Dr. Hakim (No. 2) [2012] NSWSC 1079
Category: Costs
Parties: Luis Almario (Plaintiff)
Emmanuel Varipatis (Defendant)
Representation: Counsel:
D.E. Graham S.C with N.J. Broadbent (Plaintiff)
D.J. Higgs S.C. with Dr. E. Peden (Defendant)
Solicitors:
Turner Freeman Lawyers (Plaintiff)
TressCox Lawyers (Defendant)

File Number(s): 2012/100166

Judgment

On 21st December 2012 I delivered judgment for the plaintiff against the defendant in the sum of $364,372.48. My orders included:

3. The defendant to pay the plaintiff's costs on the ordinary basis after they had been agreed or assessed.

....

5. I reserve liberty to the parties to apply for any special order as to costs by notice in writing to that effect lodged with my associate by email on or before Tuesday, 29th January 2013.

Pursuant to order 5, the plaintiff has applied in writing for a variation of order 3 so that it reads:

The defendant to pay the plaintiff's costs:

(a) As agreed or assessed on the ordinary basis up to and including 27th July 2012;

(b) As agreed or assessed on an indemnity basis from 28th July 2012 onwards.

In support of the application, the plaintiff reads the affidavit of his solicitor, Ms. Sally Gleeson, sworn 25th January 2013. Ms. Gleeson deposes to the service of a series of offers of compromise in purported compliance with UCPR 20.26 on 27th July 2012, 19th October 2012 and 23rd November 2012 respectively. Each was in the sum of $150,000. The first was expressed to be plus costs, as agreed or assessed, the second and…

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.

Continue reading Almario v Varipatis (No. 3)

Details

AGLC: Almario v Varipatis (No. 3) [2013] NSWSC 93
Case: [2013] NSWSC 93
Decision Date: 20 February 2013

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Almario v Varipatis (No. 3) concerns an application for the variation of a costs order. The plaintiff, Almario, sought an order that would allow for costs to be awarded differently from the standard rule outlined in UCPR 42.14. The application was made on the grounds that the plaintiff had made offers of compromise in accordance with UCPR 20.26. The Federal Circuit and Family Court of Australia was tasked with determining whether the circumstances warranted such a deviation from the usual rule.

The central legal issue before the court was whether the offers of compromise made by the plaintiff warranted a departure from the standard rule for awarding costs as outlined in UCPR 42.14. The court considered whether the offers of compromise, which were made in accordance with UCPR 20.26, had any bearing on the court's discretion to vary the costs order. The plaintiff argued that the offers of compromise demonstrated a willingness to resolve the dispute amicably, which should be reflected in the costs order.

The court, in its reasoning, acknowledged the principle that offers of compromise can be relevant when determining the appropriate costs order. However, the court also noted that the usual rule in UCPR 42.14 provides a framework for assessing costs, which is based on the outcome of the litigation rather than the conduct of the parties. The court found that, while the offers of compromise were commendable, they did not sufficiently justify a departure from the usual rule. The court concluded that the circumstances did not warrant an order that deviated from the standard costs assessment.

As a result, the application for the variation of the costs order was dismissed. The court upheld the standard rule for awarding costs as outlined in UCPR 42.14, finding that the offers of compromise did not provide a compelling reason to alter the usual approach. The plaintiff was not granted the relief sought in relation to the costs order.

Orders