Bogle v Kasan - [2013] NSWSC 295

Supreme Court

New South Wales

Medium Neutral Citation: Bogle v Kasan [2013] NSWSC 295
Hearing dates: 29/01/13, 01/02/13
Decision date: 08 March 2013
Jurisdiction: Common Law
Before: Button J
Decision:
The Court orders that:
(1A) The defendant's application of 1 February 2013 be dismissed with costs.
(1) Pursuant to section 76 of the Civil Procedure Act 2005, the settlement of the plaintiff's claim is approved.
(2) Judgment for the plaintiff against the defendant in the sum of $495,000 plus costs as agreed or assessed ("the Judgment").
The Court notes that:
(3) The defendant will be at liberty to deduct and pay out of the Judgment any moneys repayable by the plaintiff to any person or body, whether in respect of social services, health services or otherwise, concerning which any demand or notice has been served on or given to the defendant or its solicitors or the insurers.
(4) No interest will be payable in respect of the Judgment if the Judgment is paid within 28 days after whichever of the following events occurs last:
(i) Entry of Judgment by the Court, or
(ii) Receipt by the defendant of a final notice of reimbursement in accordance with the Health and Other Services (Compensation)Act 1995 as amended and a duly completed Medicare Australia Notice and Details of Settlement form signed by the plaintiff's solicitor, or
(iii) Where the defendant or its insurer has been or is notified that there may be moneys owing to Centrelink (Department of Social Security), receipt by the defendant of a final notice from Centrelink informing it of the amount of the payback or of the fact that no moneys are repayable.
(5)
(a) No interest shall be payable in respect of costs if the costs are paid within 28 days after whichever of the following events occurs last:
(i) The costs being agreed, or
(ii) Receipt by the defendant of a written notice of the assessment of costs, or
(iii) Receipt by the defendant of a written document signed by the plaintiff authorising and directing payments of the costs, and
(b) If interest becomes payable in accordance with 5(a), the interest will only be calculated from the date which is 28 days after the last event.
The Court directs that:
(6) The Judgment sum, after deduction of any amounts payable to Centrelink or Medicare Australia, is to be paid into Court pending further orders as to the investment and management of that sum.
(7) Costs are to be paid directly to the plaintiff's solicitors in accordance with an Authority to Receive satisfactory to the defendant.
(8) The confidential material placed before the Court on behalf of the plaintiff will be retained in the court file in an envelope marked "Only to be opened by order of a Judge".

Catchwords:
COSTS - Calderbank offer - offeree settled for similar amount many months later - state of expert evidence changed - whether any justification to depart from usual costs orders - whether rejection of Calderbank offer unreasonable in the…

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 Bogle v Kasan

Details

AGLC: Bogle v Kasan [2013] NSWSC 295
Case: [2013] NSWSC 295
Decision Date: 08 March 2013

CaseChat Overview and Summary

The case of Bogle v Kasan involved a dispute between the plaintiff and the defendant over damages for personal injury. The matter was heard in the Supreme Court of Queensland. The plaintiff, Bogle, sought to recover damages for injuries sustained in a motor vehicle accident caused by the defendant, Kasan. The primary issue before the court was whether the defendant's rejection of a Calderbank offer made by the plaintiff was unreasonable, particularly in light of changes in expert evidence and the implications for costs orders. The court also had to determine whether there were any circumstances that would justify departing from the usual costs order.

The court examined the nature of the Calderbank offer, which was made by the plaintiff to settle the proceedings for a specific amount. This offer was rejected by the defendant, who later settled the matter for a similar amount many months later. The plaintiff argued that the defendant's rejection was unreasonable, given the state of expert evidence at the time and the subsequent changes. The court considered whether the rejection of the offer was unreasonable in the context of the evolving expert evidence and the implications for costs orders. The court noted that the reasonableness of the settlement was also contingent upon the outcome of the costs order.

In its decision, the court found that the defendant's rejection of the Calderbank offer was unreasonable, given the circumstances. The court held that there were no exceptional circumstances to justify departing from the usual costs order. Consequently, the court made a usual costs order in favour of the plaintiff. The court also determined that the settlement was reasonable in light of the proposed costs order. The decision underscored the importance of the timing and context of Calderbank offers and the impact on costs orders in personal injury cases.

The court's final order was that the defendant would pay the plaintiff's costs of the proceeding in the usual form, reflecting the court's findings on the unreasonableness of the rejection of the Calderbank offer and the reasonableness of the subsequent settlement.

Orders