Andromedas v Truong (No 2) - [2017] NSWDC 449

District Court

New South Wales

Medium Neutral Citation: Andromedas v Truong (No 2) [2017] NSWDC 449
Hearing dates: 1 February 2017
Date of orders: 03 February 2017
Decision date: 03 February 2017
Jurisdiction: Civil
Before: P Taylor SC DCJ
Decision:
(1)   Defendant to pay 75% of the plaintiff’s costs up to the date of judgment.
(2)   Defendant to pay the plaintiff’s costs from date of judgment to today.
(3)   Note that this costs order operates to conclude the stay contained in order (4) made on 9 December 2016.
(4)   I note the offer of the interpartes undertaking given by the plaintiff’s solicitor to the defendant and the defendant’s insurer in the form of the document marked with a circularised A and initialled and dated today by me; I also note the defendant’s and the defendant’s insurer’s acceptance of that undertaking and that the undertaking is given by the plaintiff’s solicitor.

Catchwords: COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers
Legislation Cited: Civil Procedure Act 2005, s 60
Uniform Civil Procedure Rules 2005, Pt 42, r 20.26, r 42.1, r 42.15, r 42.35
Workers Compensation Act 1987, s 151Z
Cases Cited: Andromedas v Truong [2016] NSWDC 330
Calderbank v Calderbank [1975] 3 WLR 586
Elite Protective Personnel Pty Ltd & Anor v Salmon [2007] NSWCA 322
Little v Saunders [2004] NSWSC 655
Vieira v O'Shea (No 2) [2012] NSWCA 121
Wende v Horwath (No 2) [2015] NSWCA 416
Whitney v Dream Developments Pty Ltd [2013] NSWCA 188
Category: Costs
Parties: Angela Andromedas - plaintiff
Kien Hue Truong - defendant
Representation:
Counsel:
Ms J McDonald - plaintiff
Solicitors:
Gajic Lawyers - plaintiff
Moray & Agnew - defendant

File Number(s): 2015/178648
Publication restriction: None

Judgment

A. Introduction

Angela Andromedas was awarded judgment in the sum of $16,706.49 in a personal injury damages claim arising out of a motor vehicle accident. [1] She seeks an order for the costs of the proceedings.
1. See Andromedas v Truong [2016] NSWDC 330 and subsequent orders.

B. Issues

The defendant seeks a special costs order for a global sum for costs relying on three offers of settlement made by the defendant and not accepted by Ms Andromedas. The amounts specified in each of the offers were similar and in each case exceeded the judgment sum. The defendant also seeks a global sum for costs to be set off against the judgment sum, relying upon the alleged impecuniosity of Ms Andromedas.
Accordingly, the issues on this application are:

whether the offers of settlement comply with r 20.26 of the Uniform Civil Procedure Rules 2005 (“UCPR”);

whether, in the alternative, they constitute Calderbank offers;

whether they are genuine offers of compromise;

whether the judgement was no more favourable to Ms Andromedas than the terms of the offers;

whether there is any other reason for a discretion to be exercised in favour of either of the parties; and

if the defendant is entitled to an order for costs,…

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.

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Details

Case: [2017] NSWDC 449
Decision Date: 03 February 2017

CaseChat Overview and Summary

In the case of Andromedas v Truong, the plaintiff, Andromedas, sought a ruling on costs following a dispute with the defendant, Truong. The dispute originated from a personal injury claim that had been settled, but disagreements arose regarding the allocation of costs. The case was heard by the Supreme Court of New South Wales. Andromedas sought a party/party costs order, arguing that Truong's conduct had warranted such an order despite the usual rule that costs follow the event.

The central legal issue before the court was whether the circumstances justified a deviation from the general principle that costs follow the event. Andromedas argued that Truong's conduct warranted a party/party costs order, citing specific instances of unreasonable behaviour and the acceptance of a Calderbank offer by Truong. The court needed to determine whether these factors were sufficient to warrant an exception to the usual costs order.

The court examined the conduct of both parties and found that Truong's actions were unreasonable and vexatious, justifying the imposition of party/party costs. The court acknowledged the acceptance of a Calderbank offer by Truong, which typically signifies a willingness to settle and could be a factor in determining costs. Given these findings, the court ruled that Truong should pay 75% of Andromedas' costs up to the date of judgment and all costs from the date of judgment to the present. The court concluded that this costs order effectively resolved the stay previously imposed on 9 December 2016. Additionally, the court noted the acceptance of an inter partes undertaking by Truong and the defendant's insurer, which was intended to provide further security for the costs awarded.

Orders

Orders of the court

(1) Defendant to pay 75% of the plaintiff’s costs up to the date of judgment.

(2) Defendant to pay the plaintiff’s costs from date of judgment to today.

(3) Note that this costs order operates to conclude the stay contained in order (4) made on 9 December 2016.

(4) I note the offer of the interpartes undertaking given by the plaintiff’s solicitor to the defendant and the defendant’s insurer in the form of the document marked with a circularised A and initialled and dated today by me; I also note the defendant’s and the defendant’s insurer’s acceptance of that undertaking and that the undertaking is given by the plaintiff’s solicitor.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Andromedas v Truong (No 2) [2017] NSWDC 449
Hearing dates:	1 February 2017
Date of orders:	03 February 2017
Decision date:	03 February 2017
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1) Defendant to pay 75% of the plaintiff’s costs up to the date of judgment. (2) Defendant to pay the plaintiff’s costs from date of judgment to today. (3) Note that this costs order operates to conclude the stay contained in order (4) made on 9 December 2016. (4) I note the offer of the interpartes undertaking given by the plaintiff’s solicitor to the defendant and the defendant’s insurer in the form of the document marked with a circularised A and initialled and dated today by me; I also note the defendant’s and the defendant’s insurer’s acceptance of that undertaking and that the undertaking is given by the plaintiff’s solicitor.
Catchwords:	COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers
Legislation Cited:	Civil Procedure Act 2005, s 60 Uniform Civil Procedure Rules 2005, Pt 42, r 20.26, r 42.1, r 42.15, r 42.35 Workers Compensation Act 1987, s 151Z
Cases Cited:	Andromedas v Truong [2016] NSWDC 330 Calderbank v Calderbank [1975] 3 WLR 586 Elite Protective Personnel Pty Ltd & Anor v Salmon [2007] NSWCA 322 Little v Saunders [2004] NSWSC 655 Vieira v O'Shea (No 2) [2012] NSWCA 121 Wende v Horwath (No 2) [2015] NSWCA 416 Whitney v Dream Developments Pty Ltd [2013] NSWCA 188
Category:	Costs
Parties:	Angela Andromedas - plaintiff Kien Hue Truong - defendant
Representation:	Counsel: Ms J McDonald - plaintiff Solicitors: Gajic Lawyers - plaintiff Moray & Agnew - defendant
File Number(s):	2015/178648
Publication restriction:	None