Amor-Smith v Ching (No. 2) - [2016] NSWDC 187

District Court

New South Wales

Medium Neutral Citation: Amor-Smith v Ching (No. 2) [2016] NSWDC 187
Hearing dates: 27 May 2016
Date of orders: 27 May 2016
Decision date: 27 May 2016
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) By way of variation of orders (2) and (3) contained in Gibson DCJ’s judgment handed down today (Amor-Smith v Ching [2016] NSWDC 89), the plaintiff is to pay the defendant’s costs of the proceedings on an indemnity basis.

Catchwords: COSTS – application for indemnity costs – no issue of principle
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 98 and 99
Cases Cited: Amor-Smith v Ching [2016] NSWDC 89
Calderbank v Calderbank [1975] All ER 333
Category: Costs
Parties: Plaintiff: Genevieve Audrey Amor-Smith
Defendant: Peter Ching
Representation:
Counsel:
Plaintiff: Ms L Charleston (solicitor)
Defendant: Mr A J J Renshaw
Solicitors:
Plaintiff: Charleston Lawyers
Defendant: Hall & Wilcox Lawyers

File Number(s): 2015/254828
Publication restriction: None

Judgment

This is a judgment on indemnity costs. These are proceedings which I heard on 31 March 2016 and 1 April 2016. I have handed down a judgment this morning (Amor-Smith v Ching [2016] NSWDC 89), in which I have made orders as follows:

Summons filed on 31 August 2015 dismissed.

Plaintiff pay defendant’s costs.

Liberty to restore in relation to costs and to any other post-judgment application.

Two applications are brought before the Court. In relation to the application for indemnity costs, Ms Charleston has helpfully said that she is in a position to deal with this today.
The application for indemnity costs is made on two bases. The first is that an offer was made in accordance with the principles in Calderbank v Calderbank [1975] All ER 333. That offer was as follows:

Summons dismissed.

Each party to pay their own costs for summons.

The plaintiff agrees not to commence further proceedings in respect of the claim made under Motor Accidents Compensation Act 1999 for injuries sustained in the accident on 25 August 2011, in accordance with the imposed deed of release and indemnity.

I have briefly read the deed of release and indemnity, a simple document of slightly over one page, and I am satisfied that Mr Renshaw's description of it as being a deed that merely incorporates the contents of clause 3 is correct.
The circumstances in which a Court will make an order for indemnity costs based upon a Calderbank offer are well known and need not be repeated. It is, of course, of less persuasion than an offer of compromise, but nevertheless, the making of a Calderbank offer, in circumstances where a party who brings a claim of the nature that came before me in these proceedings, is a claim which needs to be given considerable weight.
I first note the timing of the offer, which was dated 10 March. It was open for acceptance for 14 days, both of which I considered to be reasonable terms, since the hearing was on 31 March, and the plaintiff…

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 Amor-Smith v Ching (No. 2)

Details

AGLC: Amor-Smith v Ching (No. 2) [2016] NSWDC 187
Case: [2016] NSWDC 187
Decision Date: 27 May 2016

CaseChat Overview and Summary

Amor-Smith v Ching (No. 2) involved the plaintiff, Amor-Smith, seeking indemnity costs against the defendant, Ching, following a prior judgment in Amor-Smith v Ching (No. 1). The case was heard in the District Court of New South Wales. The plaintiff sought indemnity costs on the basis that the proceedings were devoid of any real prospect of success and were therefore frivolous. The defendant opposed the application, arguing that the proceedings were not entirely without merit and therefore indemnity costs should not be awarded.

The court was required to determine whether the proceedings were so lacking in merit that the plaintiff should be ordered to pay the defendant's costs on an indemnity basis. The court considered the principles established in cases such as Legal Aid Commission of New South Wales v Minister for Justice, where it was noted that indemnity costs may be awarded if the proceedings were brought without a reasonable prospect of success and were brought for an improper purpose. The court also examined the nature of the claims made by the plaintiff and the evidence presented in support of those claims.

The court found that although the claims made by the plaintiff were ultimately unsuccessful, there was some merit in the proceedings. The court held that the proceedings were not entirely without merit and therefore indemnity costs were not appropriate. However, the court did order that the plaintiff should pay the defendant's costs of the proceedings on an indemnity basis by way of variation of earlier orders. This decision reflected the court's view that the proceedings were brought without a reasonable prospect of success and were therefore frivolous.

The final order of the court was that the plaintiff would pay the defendant's costs of the proceedings on an indemnity basis. This order was made by way of variation of earlier orders and was based on the court's finding that the proceedings were brought without a reasonable prospect of success and were therefore frivolous.

Orders

Orders of the court

(1) By way of variation of orders (2) and (3) contained in Gibson DCJ’s judgment handed down today (Amor-Smith v Ching [2016] NSWDC 89), the plaintiff is to pay the defendant’s costs of the proceedings on an indemnity basis.

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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Medium Neutral Citation:	Amor-Smith v Ching (No. 2) [2016] NSWDC 187
Hearing dates:	27 May 2016
Date of orders:	27 May 2016
Decision date:	27 May 2016
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) By way of variation of orders (2) and (3) contained in Gibson DCJ’s judgment handed down today (Amor-Smith v Ching [2016] NSWDC 89), the plaintiff is to pay the defendant’s costs of the proceedings on an indemnity basis.
Catchwords:	COSTS – application for indemnity costs – no issue of principle
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 98 and 99
Cases Cited:	Amor-Smith v Ching [2016] NSWDC 89 Calderbank v Calderbank [1975] All ER 333
Category:	Costs
Parties:	Plaintiff: Genevieve Audrey Amor-Smith Defendant: Peter Ching
Representation:	Counsel: Plaintiff: Ms L Charleston (solicitor) Defendant: Mr A J J Renshaw Solicitors: Plaintiff: Charleston Lawyers Defendant: Hall & Wilcox Lawyers
File Number(s):	2015/254828
Publication restriction:	None