Chitts v Hamied (No. 2) - [2023] NSWDC 226

District Court

New South Wales

Medium Neutral Citation: CHITTS v HAMIED (No. 2) [2023] NSWDC 226
Hearing dates: 16 June 2023
Date of orders: 28 June 2023
Decision date: 28 June 2023
Jurisdiction: Civil
Before: Lerve DCJ
Decision:
The applicant defendant to pay the costs of and incidental to the Notice of Motion.

Catchwords:
COSTS – ‘indulgence principle’ – disentitling behaviour - whether letter from defendant to plaintiff constituted a Calderbank offer

Legislation Cited:
Uniform Civil Procedure Rules (UCPR)

Cases Cited:
Chint Australasia Pty Ltd v Cosmoluse Pty Ltd [2008] NSWSC 768
Fordham v Fordyce [2007] NSWCA 129
Holt v Wynter [2000] NSWCA 143
Judd v Warwick (2007) 6 CDLR 243
Chitts v Hamied [2023] NSWDC 188

Category: Costs
Parties: Mark Anthony CHITTS
Sadek HAMIED
Representation:
Counsel:
Mr N Hogan (Applicant/Defendant)
Mr M Inglis (Respondent/Plaintiff)
Solicitors:
Avant Law (Applicant/Defendant)
Commins Hendriks Solicitors (Respondent/Plaintiff)

File Number(s): 2021/289113
Publication restriction: No

Judgment

On 5 June 2023 before the Court embarked on the hearing of a criminal trial, four civil Notices of Motion were heard. Three of those matters were resolved by Consent Orders. This matter however proceeded to hearing over about two hours. On 9 June 2023 I gave judgment on the Notice of Motion. The Solicitor appearing for the Defendant for the purposes of taking the judgment indicated that there was an issue as to costs. This second judgment in the matter relates to the issue of costs of the Motion.
The substantive matter is one that relates to a claim for professional negligence, and in particular a claim by the plaintiff that the defendant, who at the relevant time was the plaintiff’s treating general practitioner, was negligent in failing to properly diagnose and treat a compression fracture to the lower back.
The Notice of Motion involved an application by the defendant to seek leave pursuant to Part 31.28(4) of the Uniform Civil Procedure Rules (UCPR) to rely on two expert’s reports which had not been served in a timely fashion. To say that those reports had not been served in a timely fashion was very much a euphemism in this case. The procedural history is set out in the judgment of 9 June 2023, Chitts v Hamied [2023] NSWDC 188.
For reasons set out in the judgment of 9 June 2023 the defendant was granted leave to rely on those experts’ reports. However, I also made clear that because of the failures in the office of the solicitor appearing for the defendant in all the circumstances the defendant should bear the costs of the Motion.
The defendant maintains that because of what is purported to be a Calderbank Letter of 1 June 2023 the defendant maintains that the plaintiff should bear the costs of the Motion, or in the alternative that each party pay their own costs. The plaintiff maintains that the order for costs should be the one I proposed in my reasons of 9 June 2023.

General Rule

Part 42.2 of the UCPR provides:

“Subject to…

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 Chitts v Hamied (No. 2)

Details

AGLC: Chitts v Hamied (No. 2) [2023] NSWDC 226
Case: [2023] NSWDC 226
Decision Date: 28 June 2023

CaseChat Overview and Summary

The case of Chitts v Hamied (No. 2) was before the court, involving a dispute concerning costs. The plaintiff, Chitts, sought an order for the defendant, Hamied, to pay the costs of and incidental to the Notice of Motion. The primary issue before the court was whether the defendant's letter to the plaintiff, dated 10 November 2017, constituted a Calderbank offer. This determination was crucial as it would impact the assessment of costs under the 'indulgence principle' and whether the defendant's conduct could be considered disentitling behaviour.

The court considered the nature of the letter and its context, ultimately concluding that the letter did not constitute a Calderbank offer. The 'indulgence principle', which permits a court to disregard disentitling behaviour when assessing costs, was relevant here. The court needed to decide if the defendant's actions warranted the application of this principle. The court found that the letter was a genuine attempt to resolve the dispute and did not amount to disentitling behaviour. Consequently, the 'indulgence principle' did not apply, and the plaintiff was not entitled to the costs sought.

In reaching its decision, the court examined the content and timing of the letter, as well as the conduct of the parties throughout the proceedings. The court determined that the letter was not made in bad faith and did not represent an attempt to delay or obstruct the proceedings. The defendant's conduct was deemed reasonable and in line with the pursuit of a genuine settlement. Therefore, the court dismissed the plaintiff's application for costs.

The final orders of the court were that the applicant, the defendant, was to pay the costs of and incidental to the Notice of Motion. This decision underscores the importance of understanding the nuances of Calderbank offers and the application of the 'indulgence principle' in cost assessments.

Orders

Orders of the court

The applicant defendant to pay the costs of and incidental to the Notice of Motion.

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:	CHITTS v HAMIED (No. 2) [2023] NSWDC 226
Hearing dates:	16 June 2023
Date of orders:	28 June 2023
Decision date:	28 June 2023
Jurisdiction:	Civil
Before:	Lerve DCJ
Decision:	The applicant defendant to pay the costs of and incidental to the Notice of Motion.
Catchwords:	COSTS – ‘indulgence principle’ – disentitling behaviour - whether letter from defendant to plaintiff constituted a Calderbank offer
Legislation Cited:	Uniform Civil Procedure Rules (UCPR)
Cases Cited:	Chint Australasia Pty Ltd v Cosmoluse Pty Ltd [2008] NSWSC 768 Fordham v Fordyce [2007] NSWCA 129 Holt v Wynter [2000] NSWCA 143 Judd v Warwick (2007) 6 CDLR 243 Chitts v Hamied [2023] NSWDC 188
Category:	Costs
Parties:	Mark Anthony CHITTS Sadek HAMIED
Representation:	Counsel: Mr N Hogan (Applicant/Defendant) Mr M Inglis (Respondent/Plaintiff) Solicitors: Avant Law (Applicant/Defendant) Commins Hendriks Solicitors (Respondent/Plaintiff)
File Number(s):	2021/289113
Publication restriction:	No