Churchill v The University of Sydney (No 2)

[2020] NSWSC 1808

Supreme Court

New South Wales

Medium Neutral Citation:

Churchill v The University of Sydney (No 2) [2020] NSWSC 1808

Hearing dates:

On the papers

Date of orders:

14 December 2020

Decision date:

14 December 2020

Jurisdiction:

Common Law

Before:

Wilson J

Decision:

(1)   Costs against the plaintiff in favour of the defendant, in a gross sum costs order.

Catchwords:

COSTS – costs sought by defendant – no submission as to costs filed by plaintiff – ordinary rule for costs – indemnity costs sought after offer of compromise made – gross sum costs order sought – orders made in favour of defendant

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Calderbank v Calderbank [1975] All ER 333

Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213

Miwa v Siantan Properties (No 2) [2011] NSWCA 344

Richard Churchill v The University of Sydney [2020] NSWSC 1343

Category:

Costs

Parties:

Richard Churchill (Plaintiff)
University of Sydney (Defendant)

Representation:

Counsel:
J Emmett (Defendant)

Solicitors:
Plaintiff (Self-represented)
DLA Piper (Defendant)

File Number(s):

2018/186070

Publication restriction:

Nil

Judgment

1. HER HONOUR: On 25 September 2020 the Court heard and dismissed a Notice of Motion filed by the plaintiff in which leave was sought to file a further amended statement of claim: Richard Churchill v The University of Sydney [2020] NSWSC 1343 (“Churchill No 1”). At the completion of the proceedings the parties were directed to file short written submissions in relation to costs.

2. These orders were made to allow the self-represented plaintiff time to seek legal advice as to a costs order, and make informed submissions as to costs, if desired.

3. The defendant filed written submissions on 9 October 2020, within the specified timetable. The defendant submitted that costs should be awarded in the defendant’s favour; and, as per rule 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), that costs should follow the event, there being no reason to depart from the ordinary procedure. The defendant also sought orders for indemnity costs from 8 April 2020, and ultimately submitted that a gross sum costs order in a specified amount be made.

4. In support of its application for a special costs order, the defendant relied upon an affidavit from James Berg, solicitor, sworn 9 October 2020. Annexed to Mr Berg’s affidavit was correspondence sent by the defendant’s lawyers to Mr Churchill during the currency of the proceedings, seeking to settle the matter: a “Deed of Settlement and Release” dated 11 March 2020; an unsigned consent judgment; and tax invoices of Counsel’s fees. The consent judgment stipulated that no order as to costs would be made, and that the order of the Court would be judgment for the defendant in relation to the Plaintiff’s claim. This offer expired on 8 April 2020.

5. The defendant pointed out that an offer of compromise was made on 11 March 2020, which had been open for acceptance up to 4pm on 8 April 2020, in accordance with Calderbank principles: Calderbank v Calderbank [1975] All ER 333. A settlement sum of $4000 was offered to the plaintiff in the form of a Deed of Release. There would otherwise be no order as to costs under the proposed settlement.

6. The defendant referred to the six factors outlined in Miwa v Siantan Properties (No 2) [2011] NSWCA 344 at [12], in submitting that it was “unreasonable” of the plaintiff not to have accepted the offer. These factors included that the offer was made at a relatively early stage in the proceedings in terms of pleadings, albeit after the proceedings had been on foot for over 18 months; that four weeks was allowed to consider the offer; that the offer involved “a substantial compromise” (noting the plaintiff’s likely liability to costs if he was unsuccessful in his claim); the prospects of success of the plaintiff’s claim (where it was contended that he did not have reasonable prospects); the clarity of the terms of the offer (submitted as “clear”); and that the offer “expressly foreshadowed” an application for indemnity costs.

7. Referring to Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 as authority, the defendant also made submissions as to an order for a gross sum costs order.

8. The defendant submitted that its total costs, (excluding the costs of the costs application), are $68,797.86 plus GST. In assessing the costs on a ‘party/party’ basis up until 8 April 2020 and on an indemnity basis thereafter, Mr Berg estimated a range of recovery between $60,351.86 and $62,432.86. These amounts reflect a range of between 75% and 80% of the fees charged up until 8 April 2020, and between 90% and 95% of the fees charged thereafter, plus disbursements in full, as well as costs appropriate for the “defence and management of the litigation” commenced by the plaintiff.

9. If an indemnity costs order is not made by the Court, and instead costs are assessed on a party/party basis, Mr Berg’s estimated range of recovery is between $58,392.86 and $60,473.86. Applying a discount for contingencies, the defendant seeks a gross sum order of $50,000, or such other amount as the Court may consider appropriate.

10. By email correspondence to my Associate, the plaintiff informed the Court that he did not intend to file and serve, nor did he propose to rely upon, any submissions in relation to costs. He noted that he had spoken to Ms O’Donovan, Solicitor for the Defendant, and acknowledged that the defendant was seeking a gross sum costs order of no more than $50,000.

Consideration

11. The Court has a broad discretionary power to order costs in a matter. Specifically, section 98 of the Civil Procedure Act 2005 (NSW) provides:

98   Courts powers as to costs

(1) Subject to rules of court and to this or any other Act:

(a) costs are in the discretion of the court, and

(b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and

(c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis.

(2) […]

(3) An order as to costs may be made by the court at any stage of the proceedings or after the conclusion of the proceedings.

(4) In particular, at any time before costs are referred for assessment, the court may make an order to the effect that the party to whom costs are to be paid is to be entitled to:

(a) costs up to, or from, a specified stage of the proceedings, or

(b) a specified proportion of the assessed costs, or

(c) a specified gross sum instead of assessed costs, or

(d) such proportion of the assessed costs as does not exceed a specified amount.

[…]

12. Pursuant to s 98 (4)(c), the Court has express powers to make a gross sum costs order.

13. Regulation 42.1 of the UCPR provides that:

42.1 General rule that costs follow the event (cf SCR Part 52A, rule 11)

Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs.

14. I have considered the defendant’s submissions as to costs. The plaintiff did not file any evidence or submissions in response. There is no compelling reason to depart from the usual costs orders. For this reason, I have concluded that costs should be awarded in favour of the successful party.

15. Time and money could have been saved to all concerned if the plaintiff had accepted the offer of compromise, and indemnity costs for the reasons outlined by the defendant should be awarded. The gross sum costs order of $50,000 is appropriate, and not ungenerous, considering the circumstances of this case.

ORDER

16. Accordingly, the order of the Court is:

1. Costs against the plaintiff in favour of the defendant, in a gross sum costs order.

**********

Decision last updated: 14 December 2020