Burns v Grevler (No. 2)

[2010] NSWSC 1232

CITATION:	Burns v Grevler (No. 2) [2010] NSWSC 1232
HEARING DATE(S):	22 October 2010
JUDGMENT DATE :	22 October 2010
JURISDICTION:	Equity Division
JUDGMENT OF:	Rein J
DECISION:	1. Defendant to pay interest to the plaintiff on the principal sum in the amount of $1,069,328.37, which amount is calculated as follows: (a) interest on the sum of $15,000 from 8 June 2004 to 22 October 2010 at the prescribed court rate in the amount of $8,910.00; (b) interest on the reducing capital balance of $3,500,000 calculated from 6 February 2007 to 22 October 2010 at the prescribed court rate in the amount of $1,060,418.37. 2. Defendant to pay the plaintiff's costs of the proceedings: (a) from the date of commencement of proceedings up to and including 22 April 2010 on an ordinary basis; (b) from 23 April 2010 to 22 October 2010 on an indemnity basis. 3. Exhibits to be returned in 28 days in the absence of an appeal
CATCHWORDS:	PROCEDURE - costs - where offer of compromise made by plaintiff - where plaintiff obtained judgment more favourable than amount offered - whether defendant liable to pay plaintiff's costs on an indemnity basis
LEGISLATION CITED:	Uniform Civil Procedure Rules 2005 (NSW)
CATEGORY:	Consequential orders
CASES CITED:	NSW Insurance Ministerial Corporation v Reeves (1993) 42 NSWLR 100
PARTIES:	Sarah Margaret Burns (plaintff) Alan Michael Grevler (defendant)
FILE NUMBER(S):	SC 2009/288038
COUNSEL:	M R Aldridge SC (plaintiff) A P P Lo Surdo (defendant)
SOLICITORS:	Polczyncki Lawyers (plaintiff) Kennedys (defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Rein J

Date of Hearing: 22 October 2010
Date of Judgment: 22 October 2010

2009/288038 Sarah Margaret Burns v Alan Michael Grevler (No. 2)

JUDGMENT (EX TEMPORE)

1 REIN J: In this matter, the plaintiff has obtained judgment against the defendant and, being entitled to an order for costs in her favour, makes an application for costs on an indemnity basis. The plaintiff, through her solicitors, made an offer of compromise to the defendant, through his solicitors, dated 22 April 2010: see Exhibit B. There is no issue about the form of the offer of compromise. The result of the case is that the plaintiff has obtained judgment well in excess of the amount that was offered. Although it is strictly not necessary to have regard to this, the offer was a reasonable offer to try to compromise the matter for an amount significantly less than the amount for which the plaintiff ultimately has been successful.

2 Mr A Lo Surdo, of counsel, who appears for the defendant, opposes the making of the order on the basis that since the case involved issues of credit, it was reasonable for his client to resist the claim. Even were that true and even though it would be relevant to an offer in a Calderbank letter, it has nothing to do, in my view, with the situation where an offer for compromise has been made, as it has in this case, in accordance with Part 42 of the Uniform Civil Procedure Rules 2005 (NSW). Mr Lo Surdo concedes that there is authority for the proposition that even where it was objectively reasonable for an offeror to test the other party’s claim, that is not a sufficient reason to preclude the order being made: see NSW Insurance Ministerial Corporation v Reeves (1993) 42 NSWLR 100.

3 Rule 42.14, by the phrase “Unless the Court orders otherwise”, makes it clear that there is room for discretion, but that discretion is required to be exercised on proper grounds. In my view, no ground has been advanced that would preclude the plaintiff from recovering her costs on an indemnity basis.

4 I have previously entered judgment for the principal amount. I will now deal with the balance of the matters that need to be determined. Short Minutes of Order have been prepared by the plaintiff. I make orders in accordance with paragraphs 2 and 3 of those Short Minutes of Order, which I initial and date with today’s date. Exhibits are to be returned on the expiry of 28 days from today’s date in the absence of an appeal.

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