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Alves v Patel

Alves v Patel

Case [2005] NSWSC 841 24 August 2005

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CITATION:
ALVES v PATEL [2005] NSWSC 841

HEARING DATE(S): 5 March 2004

JUDGMENT DATE :

24 August 2005

JURISDICTION:
COMMON LAW

JUDGMENT OF:
Adams J

DECISION:
The defendant is to pay the plaintiff's costs of action as agreed or assessed. From 1 July 2000, those costs are to be assessed on an indemnity basis. The plaintiff is to pay the defendant's costs, if any, thrown away by late service of medical reports listed in annexure AE of the affidavit Keely Louise Graham sworn 13 February 2001

CATCHWORDS:
COSTS - whether indemnity or conventional - principles - reasonableness of defendant's non-acceptance - outstanding particulars as at offer - significance of late provisions of discoverable documents - significance of complexity of issues - notice of compromise requiring acceptance without allowance for significant vacation rule - whether valid notice - extent by which judgment exceeded offer.

CASES CITED:
Morgan v Johnson (1998) 44 NSWLR 578
Houatchanthara v Bednarczyk (Court of Appeal, 14 October 1996 unreported
Nobrega v The Trustee of the Roman Catholic Church
Sanko Steamship Co Limited v Sumitomo Australia Limited Fed No 22/96 (unreportedf)
CBA Investments Ltd v Northern Star Ltd (No2) 2002 NSWCA 146
SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323
John S Hayes & Associates v Kimberley-Clarke Australia Pty Ltd (1994) 52 FLR201
MGICA (1992) Pty Ltd v Kenny & Good Pty Ltd (1996) 70 FLR 235
Delaney v Short (2001) NSWCA 181
CBA Investments Ltd v Northern Star Ltd (2002) NSWCA 146

PARTIES:
Manuel Barata ALVES- Plaintiff
Manuel Barata Alves - Plaintiff
Praeful Patel - Defendant

FILE NUMBER(S):
SC 12957/94

COUNSEL:
Mr L King SC - with Mr J Pender - Plaintiff
Mr A Sullivan QC with Mr H Stowe - Defendant

SOLICITORS:
Grey & Perkins - Plaintiff
Blake Dawson Waldron - Defendant

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ADAMS J

24 August 2005

12957/94 ALVES v PATEL
JUDGMENT

1 HIS HONOUR: On 19 December 2002 judgment was given for the plaintiff against the defendant in the sum of $3,470,172 plus costs. Not surprisingly, in a case of this size and complexity, negotiations over costs were entered into between the parties from time to time with various offers and counter offers being made. As I understand it, the defendant does not dispute that the usual order for costs should be made since the verdict exceeded by a considerable margin the sum last offered by the defendant to achieve settlement. The substantial issue between the parties is whether costs should be ordered to be paid on an indemnity basis. Relevant to this issue is not only the course of negotiations but also the course of the litigation having regard especially to the changes made by the plaintiff as to certain aspects of his claim and the evidence which he proposed to call in support of it.

Note on affidavits

2 The defendant relied, in addition to the evidence on trial, on the affidavits of Ms…

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 Alves v Patel

Details

AGLC: Alves v Patel [2005] NSWSC 841
Case: [2005] NSWSC 841
Decision Date: 24 August 2005

CaseChat Overview and Summary

The case of Alves v Patel involved a dispute between the plaintiff, Alves, and the defendant, Patel, concerning costs in the context of legal proceedings. The dispute was heard in the Supreme Court of New South Wales. The primary issue before the court was whether the costs incurred by the plaintiff should be assessed on an indemnity basis or a conventional basis. Additionally, the court had to consider the reasonableness of the defendant's non-acceptance of the plaintiff's offer and the implications of outstanding particulars and late discoverable documents on the costs assessment.

The court examined the principles governing the assessment of costs, focusing on the reasonableness of the defendant's non-acceptance of the plaintiff's offer. The court highlighted the significance of outstanding particulars and late discoverable documents on the outcome of the proceedings. Furthermore, the court considered the complexity of the issues involved and the notice of compromise provided to the defendant. The court determined that the notice of compromise, which required acceptance without allowing for the significant vacation rule, was not valid. The court also assessed the extent by which the judgment costs exceeded the offer.

The court concluded that the costs should be assessed on an indemnity basis due to the unreasonableness of the defendant's non-acceptance of the plaintiff's offer and the significant factors that impacted the proceedings. The court found that the complexity of the issues and the late discovery of documents warranted a higher costs assessment. The final orders were made in favour of the plaintiff, awarding costs on an indemnity basis and outlining the specific amounts to be paid by the defendant.

Orders