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

1. 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 …

1. The plaintiff’s application seeks to embody the second defendant’s written agreement

   to pay his costs in accordance with the above terms of r 1010 in an order of the Court.

The parties’ submissions

6.       The plaintiff argues that the agreement between the parties is insufficient, because in the absence of an order, there might further disputes and litigation. He submits that an

order of the Court is “an official proclamation that defines the relationship between the

parties to reach finality”. The plaintiff further submits the order sought is in the broader

public interest, provides clarity and finalises the totality of the proceedings.

7.       The defendants resist a formal order being made on the basis that there is no issue to resolve between the parties. There is a private agreement about costs which does not

require the Court’s intervention, whether “for clarity” or otherwise. The defendants

submit that for the parties to be returning to Court after final judgment has been delivered, about a matter that has already been agreed, is an approach that runs contrary to s 5A of the Court Procedures Act 2004 (ACT) (the Act).

1. The defendants submit that if the plaintiff’s present application were to be adopted on

   a broad scale in other matters, such conduct will seriously impact on the Court’s time

   and resources.

Consideration

1. The current words of the order are that the defendants pay the plaintiff’s costs. Where

   such an order is made, it is axiomatic that the costs will either be agreed or assessed.

10.     I am not persuaded that the existing order gives rise to any uncertainty or need for clarity. While orders for costs are usually made on the ordinary party and party basis, the present form of the order does not preclude the later agreement of the parties that such costs be paid on a solicitor and client basis, as has occurred here.

11. The policy behind pt 2.10 of the Rules, which creates the regime for offers of compromise to be made and the consequences that follow, is to encourage the early resolution of disputes through the provision of predictable costs consequences. The predictability is achieved by the self-executing nature of the applicable rule, in this case, r 1010(2). Where there is an effective offer of compromise in personal injury proceedings, the default position is that solicitor and client costs are payable for the entire proceedings. It is only when a party is seeking to depart from that automatic outcome that an application to the Court for a different order is necessary, if not otherwise agreed.

12. For this reason, where a defendant accepts a valid offer was made pursuant to pt 2.10 of the Rules, the Rules operate to make the costs outcome clear. There is no

substance to the plaintiff’s submission that there might be further disputes or that an

order is needed to define the relationship between the parties to reach finality. The very purpose of pt 2.10 of the Rules is an attempt to avoid disputes about what the final costs outcome will be.

1. The defendants’ submission that there is no necessity to vary the order is therefore

   correct. However, in light of the defendants’ concession I also see no reason not to

   make it, now that the parties have engaged in the process of agitating the question before the Court, with written submissions, further evidence and the requirement for these brief reasons for judgment.

14. However, I wish to lend no encouragement to the course adopted by the plaintiff since judgment was delivered. Under s 5A of the Act, the overriding purpose of the civil procedure provisions is to facilitate the just resolution of disputes according to law in the most quick, inexpensive, and efficient manner possible. The parties, through their legal representatives, have an obligation to assist the Court to achieve that result: s 5A(4) of the Act.

15. Any benefit the defendants hoped to achieve, by promptly agreeing to the appropriate outcome for costs, will have been largely eroded by the rather unedifying dispute about whether or not court intervention is required to confirm their agreement. The focus of s 5A of the Act makes it clear that the function of the courts is to resolve disputes. What has occurred between the plaintiff and the defendants here is the settlement of an issue out of court, so that there really was no issue genuinely in dispute. What was in dispute was whether the words of a previous costs order should reflect a later agreement.

16.     In those circumstances, I accept the defendants’ submission that the costs order in favour of the plaintiff ought not extend to the plaintiff’s conduct post judgment on 29

October 2020 (including an unnecessary application regarding an obvious error that was not disputed by the defendants), and I will so order.

Orders

17.     The order of the Court is as follows:

(1)	The second defendant is to pay the plaintiff’s costs on a solicitor and client basis
for the whole of the proceedings up to judgment on 29 October 2020.

I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam

Associate:

Date: