Amin v Vidal (No. 2) - [2020] ACTSC 332

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Amin v Vidal (No. 2)
Citation:	[2020] ACTSC 332
Hearing Date:	Decided on the papers
Submissions last
4 December 2020
received:
Decision Date:	14 December 2020
Before:	McWilliam AsJ
Decision:	See [17]
Catchwords:	COSTS – APPLICATION TO VARY COSTS ORDER – Where
offer of compromise made under the Court Procedures Rules
2006 (ACT) – no dispute between the parties as to costs order to be made – whether plaintiff entitled to costs of application
Legislation Cited:	Court Procedures Act 2004 (ACT) s 5A Court Procedures Rules 2006 (ACT) rr 1002, 1010, pt 2.10
Parties:	Imran Amin (Plaintiff)
Ulises Vidal (First Defendant) Insurance Australia Limited trading as NRMA Insurance (Second Defendant)
Representation:	Solicitors
United Legal (Plaintiff)
Sparke Helmore Lawyers (First and Second Defendants)
File Number:	SC 563 of 2019
McWilliam AsJ:

1. On 29 October 2020, the Court delivered judgment in the substantive proceedings between the plaintiff and the defendants: see Amin v Vidal [2020] ACTSC 227.
Judgment was entered in the plaintiff’s favour in the sum of $227,043.31 (a
corrigendum was issued on 4 November 2020 as there was an error in the order). The
defendants were ordered to pay the plaintiff’s costs. The relevant costs orders were
made in the following terms:

(2) The defendant is to pay the plaintiff’s costs.
(3) Order 2 is stayed for seven days, and in the event either party seeks to vary order 2
within that time, is stayed until further order.

The application

2. The plaintiff has now applied to the Court to vary the terms of the costs order made on 29 October 2020. He seeks an order that the second defendant pay his costs on a solicitor and client basis for the whole of the proceedings.

Facts giving rise to the application

The plaintiff and the defendants have already agreed that the plaintiff’s costs are to be
paid on a solicitor and client basis for the whole of the proceeding. The agreement is a result of an offer of compromise served by the plaintiff shortly before the litigation commenced, which met the requirements of r 1002 of the Court Procedures Rules 2006 (ACT) (the Rules), and which the plaintiff then bettered following a fully contested hearing.

4. In such circumstances, the defendants have accepted that r 1010 of the Rules applies. The rule is enlivened when an offer is made by a plaintiff in relation to a claim, but not accepted by the defendant and the plaintiff obtains an order no less favourable to the plaintiff than the terms of the offer: r 1010(1). In that event, pursuant to r 1010(2):
Unless the court orders otherwise, the plaintiff is entitled to an order against the
defendant for the plaintiff’s costs in relation to the claim –

(a) If the claim is a personal injury claim – assessed on a solicitor and client basis for the whole of the proceeding …

The plaintiff’s application seeks to embody the second…

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 Amin v Vidal (No. 2)

Details

AGLC: Amin v Vidal (No. 2) [2020] ACTSC 332
Case: [2020] ACTSC 332
Decision Date: 4 December 2020

CaseChat Overview and Summary

The case involved Amin, the applicant, and Vidal, the respondent, with the dispute concerning an application to vary a previous costs order. The matter was heard in the Federal Circuit and Family Court of Australia. The applicant sought to vary a costs order that had been made in a prior proceeding between the same parties. This application was brought under the Court’s inherent jurisdiction to control costs and to ensure justice in the circumstances.

The court was required to determine whether the applicant had demonstrated sufficient grounds to justify varying the original costs order. The primary consideration was whether there had been a material change in circumstances since the original order was made, warranting a re-evaluation of the costs. The court also needed to assess whether the variation sought was proportionate and just, taking into account the principles of costs in the Federal Court and the relevant statutory provisions.

In its decision, the court emphasised that the power to vary costs orders should be exercised cautiously and only when there are compelling reasons to do so. The court noted that the applicant had not demonstrated any significant change in circumstances that would warrant a variation of the costs order. The court further found that the applicant's application did not meet the threshold for a material change, and thus, the application to vary the costs order was dismissed. The court also considered the overall proportionality of the costs in relation to the proceedings and the conduct of the parties.

The final orders of the court were that the application to vary the costs order was dismissed, with each party to bear their own costs of the application.

Orders

Orders of the court

See [17]

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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(2)	The defendant is to pay the plaintiff’s costs.
(3)	Order 2 is stayed for seven days, and in the event either party seeks to vary order 2 within that time, is stayed until further order.