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

1. 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:

1. Summons filed on 31 August 2015 dismissed.

2. Plaintiff pay defendant’s costs.

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

2. 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.

3. 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:

1. Summons dismissed.

2. Each party to pay their own costs for summons.

3. 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.

4. 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.

5. 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.

6. 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 was well aware of the nature and the extent, not only of her own case, but of the possible areas of cross‑examination in relation to that case by the defendant.

7. The next question is whether it was a true settlement. It is put to me that this is a mere walk-away offer. Offers of a walk-away nature are not to be dismissed as a complete failure to make compromise; each walk-away offer must be considered on its facts. It is not necessary for a defendant to make an offer of an actual sum; the compromising of costs is a considerable benefit, particularly in a case such as the present. On the facts of this case, I am satisfied that the Calderbank offer is sufficient to trigger the award of indemnity costs.

8. Even if that were not the case, I consider that I could have awarded indemnity costs in any event, if asked, by reason of the frankly extraordinary circumstances in which the plaintiff brought her claim, where she had not only told the nine doctors she consulted in relation to her ongoing and pre-existing psychiatric problems that she had been attempting to commit suicide, but she made statements as to her disabilities, which is set out in Amor-Smith v Ching at [37], that were dishonest to the point of being fraudulent.

9. The extensive material tendered really does not do justice to the degree to which the plaintiff not only did not suffer from any of the disabilities that she claimed in paragraphs 73, 74, and 80 of her affidavit, but also to the admissions she made, in the course of her cross-examination, that she had not only lied in her affidavit, but lied in her evidence. I particularly note the matters that are set out in the extracts of her cross-examination by Mr Renshaw, at paragraphs 42 and 43.

10. This Court has an entitlement to make such orders under ss 98 and 99 Civil Procedure Act 2005 (NSW), and I consider, in the circumstances, that I need do no more than refer to the matters set out in my judgment as being one of the clearest cases I have seen of conduct by a plaintiff warranting the award of indemnity costs.

11. The Court's power to award indemnity costs must never be embarked upon as a punishment, and I have borne this principle carefully in mind. However, in circumstances where this claim was not only brought and prosecuted, but prosecuted vigorously to conclusion, in circumstances where the plaintiff must be taken to have known of the falsity of her own evidence, is such as to warrant the making of an order of indemnity costs, in any event.

Orders

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.

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Decision last updated: 25 August 2016