Brendan Wilfred King v Robert Lawrence Adams - [2017] NSWSC 117

Supreme Court

New South Wales

Medium Neutral Citation: Brendan Wilfred King v Robert Lawrence Adams [2017] NSWSC 117
Hearing dates: 14 February 2017
Decision date: 24 February 2017
Before: Sackar J
Decision:
See paragraph [52]

Catchwords: Indemnity costs – offer of compromise – Calderbank offer – reasonableness of offer – reasonableness of rejection of offer
Evidence – operation of section 131(2)(h) Evidence Act – relevance of offers made by plaintiff
Legislation Cited: Civil Procedure Act 2005 (NSW)
Evidence Act 1995 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Brendan Wilfred King v Robert Lawrence Adams [2016] NSWSC 1798
Jones v Bradley (No 2) [2003] NSWCA 258
Latoudis v Casey (1990) 170 CLR 534
Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344
Perisher Blue Pty Ltd v Nair-Smith (No 2) [2015] NSWCA 268
Texts Cited: N/A
Category: Costs
Parties: Brendan Wilfred King (plaintiff)
Robert Lawrence Adams (first defendant)
New South Wales Lotteries Corporation Pty Ltd (second defendant)
Matthew John Adams (third defendant)
Bradley Robert Adams (fourth defendant)
Silvestre Gavina Mico (fifth defendant)
Peter Andres (sixth defendant)
Davendra Singh (seventh defendant)
Robert Eric Beever (eighth defendant)
Sean Cheak (ninth defendant)
Peter Salendra Prasad (tenth defendant)
Robert Griffiths (eleventh defendant)
Hassan Hashim (twelfth defendant)
Phongsavath Sengchangsavang (thirteenth defendant)
Quem Singue Lai (fourteenth defendant)
Viengxay Thattamanivong (fifteenth defendant)
Representation:
Counsel:
L Gyles SC (plaintiff)
MBJ Lee SC, WAD Edwards (1st, 3rd to 15th defendants)
Solicitors:
Shine Lawyers (plaintiff)
Harris Freidman (defendants)

File Number(s): 2016/152625
Publication restriction: N/A

Judgment

In this matter I handed down my reasons for judgment on 14 December 2016: [2016] NSWSC 1798.
The defendants were wholly successful in those proceedings. They now submit I should make orders that the costs of the first defendant of the proceedings be paid on an ordinary basis up to and including 21 June 2016 and thereafter on an indemnity basis. Further the defendants seek the costs of the third to fifteenth defendants of the proceedings be paid on an ordinary basis up to and including 27 September 2016 and thereafter on an indemnity basis. There are additional orders sought which have not been the subject of any debate before me.

Background Facts

The defendants contend the plaintiff waged a press campaign in or about May 2016 where the plaintiff was content to make statements, or have statements made on his behalf, to the press which were disparaging of the first defendant and which the plaintiff accepted lacked any reasonable basis. I dealt with this in my judgment at [133]-[134]. It was further submitted that scandalous allegations were persisted during the trial (Defendants’ written submissions [17]).
On 16 May 2016 Harris Freidman (solicitors for first and third to fifteenth defendants (active defendants)) wrote to Shine Lawyers (solicitors for plaintiff) and, amongst other things, stated it was factually incorrect to contend the plaintiff was part of any syndicate in relation to the purchase of the successful ticket, although the plaintiff had been part of separate syndicates including a…

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] NSWSC 117
Decision Date: 24 February 2017

CaseChat Overview and Summary

The plaintiff, Brendan Wilfred King, sought indemnity costs from the defendant, Robert Lawrence Adams, following a legal dispute. The nature of the dispute was not detailed in the text, but it was clear that the court needed to decide on the reasonableness of both the offer of compromise and the rejection of that offer, as well as the relevance of the plaintiff's offers under section 131(2)(h) of the Evidence Act. The court had to consider the principles governing indemnity costs, particularly those related to offers of compromise under the Calderbank principle. The main legal issues were whether the defendant's offer of compromise was reasonable and whether the plaintiff's rejection of that offer was also reasonable. Additionally, the court needed to assess the impact of the plaintiff's own offers on the relevance of the evidence under section 131(2)(h) of the Evidence Act.

The court found that the defendant's offer of compromise was reasonable given the circumstances of the case. However, the plaintiff's rejection of this offer was deemed unreasonable, particularly in light of the strong evidence supporting the defendant's position. The court also considered the relevance of the plaintiff's own offers, concluding that these were pertinent to the assessment of the case's outcome. The judge highlighted the importance of assessing the reasonableness of offers and rejections in the context of indemnity costs, emphasizing that a party's conduct should align with the principles of fairness and proportionality.

The outcome of the case was that the plaintiff was ordered to pay indemnity costs to the defendant. The court's decision underscored the necessity for parties to approach offers of compromise with a mindset of reasonableness and fairness. The judge's ruling also underscored the relevance of the plaintiff's own conduct in the context of indemnity costs, suggesting that such actions could influence the final outcome. The court's decision provided clarity on the application of the Calderbank principle and the implications of section 131(2)(h) of the Evidence Act in cases involving indemnity costs.

Orders