Bekdache v Chen (No 2) - [2021] NSWDC 56

District Court

New South Wales

Medium Neutral Citation: Bekdache v Chen (No 2) [2021] NSWDC 56
Hearing dates: 5 February 2021
Date of orders: 8 February 2021
Decision date: 08 February 2021
Jurisdiction: Civil
Before: P Taylor SC DCJ
Decision:
(1)   The defendant to pay the plaintiff's costs up to and including 19 May 2020, and any costs thrown away by the amendment during the trial.
(2)   No order as to the costs of and arising from the pleading point and the amendment referred to in paragraphs 48 to 57 of Bekdache v Chen [2020] NSWDC 830.
(3)   Subject to orders 1 and 2, the plaintiff to pay the defendant's costs from 20 May 2020 on the ordinary basis.

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 56, s 57, s 60, s 98
Uniform Civil Procedure Rules 2005, r 20.26, r 20.30, Pt 42, r 42.14, r 42.15

Cases Cited:
Babylon Aluminium Pty Ltd v Khazma Aluminium Windows & Doors Pty Ltd (unreported, 16 October 2020, District Court of New South Wales, Taylor SC DCJ)
Bekdache v Chen [2020] NSWDC 830
In the matter of Alsafe Security Products Pty Ltd atf the Alsafe Trust (in liquidation) [2016] NSWSC 575
Macplan Logistics Systems Pty Ltd v Baxter Healthcare Pty Ltd (1996) 39 NSWLR 324

Category: Costs
Parties: Mouna Bekdache (plaintiff)
Cindy Wing-see Chen (defendant)
Representation:
Counsel:
Mr P J Macarounas (plaintiff)
Mr J Catsanos SC (defendant)
Solicitors:
AJB Stevens Lawyers (plaintiff)
Sparke Helmore (defendant)

File Number(s): 2018/78011
Publication restriction: None

Judgment

Introduction

Mouna Bekdache maintained proceedings for damages for an injury sustained in an incident involving a motor vehicle. Liability was admitted, although contributory negligence was an issue. She received judgment[1] for $31,899.62 after damages were reduced by two-thirds for contributory negligence. This judgment is in respect of the costs of the proceedings.
1. Bekdache v Chen [2020] NSWDC 830.
The defendant seeks that the plaintiff be awarded costs on the ordinary basis until 19 May 2020, and that the plaintiff pay the defendant’s costs on an indemnity basis from 20 May 2020. 19 May was the date of service of an offer of compromise which exceeded the amount of the judgment. Ms Bekdache seeks that she receives the costs of the proceedings on the ordinary basis.

The offer of compromise

The trial commenced on 23 June 2020. Some five weeks earlier, on 19 May 2020, the defendant served an offer of compromise in the following terms:

“1 Judgment in favour of the Plaintiff in the sum of $35,000.
2 The Defendant to pay the Plaintiff’s costs as assessed or agreed.
3 This offer is made in accordance with the provisions of Rule 20.26 of the Uniform Civil Procedure Rules 2005 (NSW).
4 This offer is open to be accepted for 14 days from the date of receipt of this Offer and it will be relied on in…

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 Bekdache v Chen (No 2)

Details

AGLC: Bekdache v Chen (No 2) [2021] NSWDC 56
Case: [2021] NSWDC 56
Decision Date: 08 February 2021

CaseChat Overview and Summary

The case of Bekdache v Chen (No 2) involved a dispute between the plaintiff, Bekdache, and the defendant, Chen, concerning costs incurred in a legal proceeding. The matter was heard in the New South Wales District Court. The central issue was the allocation of costs between the parties, particularly in light of a Calderbank offer made by the defendant.

The court was tasked with determining the appropriate allocation of costs between the parties, taking into account the defendant's Calderbank offer. A Calderbank offer is an offer to settle on terms that are worse than those ultimately awarded by the court, and such an offer can be a factor in the court's decision regarding costs. The court considered the timing and content of the offer, as well as the overall conduct of the parties during the litigation.

The court ruled that the defendant should pay the plaintiff's costs up until a specific date, and also cover any costs that were incurred due to the amendment of the pleadings during the trial. However, the court made no order regarding the costs associated with a specific pleading point and amendment that had been previously discussed in an earlier decision. Finally, the court ordered that, subject to the previous orders, the plaintiff would pay the defendant's costs from a certain date, on the usual basis. This means that the defendant would be responsible for their own costs from that point onwards, unless otherwise specified.

Orders

Orders of the court

(1) The defendant to pay the plaintiff's costs up to and including 19 May 2020, and any costs thrown away by the amendment during the trial.

(2) No order as to the costs of and arising from the pleading point and the amendment referred to in paragraphs 48 to 57 of Bekdache v Chen [2020] NSWDC 830.

(3) Subject to orders 1 and 2, the plaintiff to pay the defendant's costs from 20 May 2020 on the ordinary 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:	Bekdache v Chen (No 2) [2021] NSWDC 56
Hearing dates:	5 February 2021
Date of orders:	8 February 2021
Decision date:	08 February 2021
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1) The defendant to pay the plaintiff's costs up to and including 19 May 2020, and any costs thrown away by the amendment during the trial. (2) No order as to the costs of and arising from the pleading point and the amendment referred to in paragraphs 48 to 57 of Bekdache v Chen [2020] NSWDC 830. (3) Subject to orders 1 and 2, the plaintiff to pay the defendant's costs from 20 May 2020 on the ordinary basis.
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 56, s 57, s 60, s 98 Uniform Civil Procedure Rules 2005, r 20.26, r 20.30, Pt 42, r 42.14, r 42.15
Cases Cited:	Babylon Aluminium Pty Ltd v Khazma Aluminium Windows & Doors Pty Ltd (unreported, 16 October 2020, District Court of New South Wales, Taylor SC DCJ) Bekdache v Chen [2020] NSWDC 830 In the matter of Alsafe Security Products Pty Ltd atf the Alsafe Trust (in liquidation) [2016] NSWSC 575 Macplan Logistics Systems Pty Ltd v Baxter Healthcare Pty Ltd (1996) 39 NSWLR 324
Category:	Costs
Parties:	Mouna Bekdache (plaintiff) Cindy Wing-see Chen (defendant)
Representation:	Counsel: Mr P J Macarounas (plaintiff) Mr J Catsanos SC (defendant) Solicitors: AJB Stevens Lawyers (plaintiff) Sparke Helmore (defendant)
File Number(s):	2018/78011
Publication restriction:	None