Colak v Ghalloub (No. 2) - [2017] NSWDC 351

District Court

New South Wales

Medium Neutral Citation: Colak v Ghalloub (No. 2) [2017] NSWDC 351
Hearing dates: 4 December 2017
Date of orders: 12 December 2017
Decision date: 12 December 2017
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) The plaintiff is to pay the defendant’s costs on the ordinary basis up until 25 January 2017 and thereafter on an indemnity basis.

Catchwords: COSTS – plaintiff fails on liability in personal injury proceedings, with an alternative finding for damages of a nominal nature - application for indemnity costs on the basis of six offers in the year prior to the hearing – indemnity costs order made – alternative finding that if the plaintiff had been successful on liability but not quantum, no order for costs in the plaintiff’s favour should be made by reason of UCPR Pt 42 r 35
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 60 and 98
Motor Accidents Compensation Act 1999 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 42.15A and 42.35
Cases Cited: Beaumont v Greathead (1846) 2 CB 494 at 499
Colak v Ghalloub [2017] NSWDC 128
State of New South Wales v Stevens (2012) 82 NSWLR 106
Category: Costs
Parties: Plaintiff: Ali Colak
Defendant: Ghalloub Ghalloub
Representation:
Counsel:
Plaintiff: Mr J Turnbull SC
Defendant: Mr A J J Renshaw
Solicitors:
Plaintiff: AJB Stevens Lawyers
Defendant: Sparke Helmore Lawyers

File Number(s): 2015/302011
Publication restriction: None

Judgment

The plaintiff brought proceedings for damages for a motor vehicle accident occurred on 9 October 2014 when the defendant reversed his motor vehicle out of the driveway and struck the plaintiff’s vehicle. On 30 May 2017, I made orders as follows:

Judgment for the defendant.

Costs reserved.

Liberty to apply in relation to costs.

Exhibits retained for 28 days.

Pursuant to the leave granted, the defendant brings an application for costs on an indemnity basis.
The finding for the defendant included observations as to the quantum of damages which would have been awarded, namely $9,000 for past and future out-of-pocket expenses (Colak v Ghalloub [2017] NSWDC 128 at [110]) and $29,000 for future paid care (at [107]) which reduced to a total of $7,250 to take into account the findings of contributory negligence of 75% (at [76]). This was very close to the final offer made by the defendant, namely a judgment for the plaintiff for the sum of $8,000.
The defendant made sustained attempts at settlement as follows:

By offer dated 29 August 2016, verdict for the plaintiff without contribution;

By offer dated 7 September 2016, verdict for the plaintiff without contribution;

By offer dated 12 October 2016, verdict for the plaintiff without contribution;

By offer dated 14 November 2016, verdict for the plaintiff without contribution;

By offer dated 17 January 2017, verdict for the plaintiff in the sum of $67,000;

By offer dated 25 January 2017, verdict for the plaintiff in the sum of $8,000 plus costs.

The defendant seeks indemnity costs on the following bases:

Pursuant to the offer of compromise provisions…

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 Colak v Ghalloub (No. 2)

Details

AGLC: Colak v Ghalloub (No. 2) [2017] NSWDC 351
Case: [2017] NSWDC 351
Decision Date: 12 December 2017

CaseChat Overview and Summary

Colak v Ghalloub (No. 2) involved the plaintiff, Mr Colak, suing the defendant, Mr Ghalloub, for personal injury damages arising from a car accident. The dispute centred on the liability for the accident and the extent of damages. The case was heard in the Supreme Court of New South Wales.

The legal issues before the court included whether Mr Colak was entitled to indemnity costs given that he had failed on liability but made alternative findings for damages of a nominal nature, and whether there were circumstances that justified such an order under the Uniform Civil Procedure Rules. The court also had to determine if an order for indemnity costs should be made if Mr Colak had succeeded on liability but not on quantum.

In ruling on these issues, the court found that despite the plaintiff's failure on liability, he had made alternative findings for damages of a nominal nature. The court acknowledged that six offers to settle had been made in the year before the hearing, which supported an order for indemnity costs. However, the court also noted that if Mr Colak had succeeded on liability but not on quantum, no order for costs in his favour should be made by reason of UCPR Part 42 rule 35. Consequently, the court ordered that Mr Colak was to pay the defendant's costs on the ordinary basis up until 25 January 2017, and thereafter on an indemnity basis.

The court's decision highlighted the importance of alternative findings in personal injury cases and the stringent requirements for indemnity costs. The court balanced these considerations in making its orders, ensuring that the rules were applied fairly in light of the procedural history of the case.

Orders

Orders of the court

(1) The plaintiff is to pay the defendant’s costs on the ordinary basis up until 25 January 2017 and thereafter on an indemnity basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Colak v Ghalloub (No. 2) [2017] NSWDC 351
Hearing dates:	4 December 2017
Date of orders:	12 December 2017
Decision date:	12 December 2017
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) The plaintiff is to pay the defendant’s costs on the ordinary basis up until 25 January 2017 and thereafter on an indemnity basis.
Catchwords:	COSTS – plaintiff fails on liability in personal injury proceedings, with an alternative finding for damages of a nominal nature - application for indemnity costs on the basis of six offers in the year prior to the hearing – indemnity costs order made – alternative finding that if the plaintiff had been successful on liability but not quantum, no order for costs in the plaintiff’s favour should be made by reason of UCPR Pt 42 r 35
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 60 and 98 Motor Accidents Compensation Act 1999 (NSW) Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 42.15A and 42.35
Cases Cited:	Beaumont v Greathead (1846) 2 CB 494 at 499 Colak v Ghalloub [2017] NSWDC 128 State of New South Wales v Stevens (2012) 82 NSWLR 106
Category:	Costs
Parties:	Plaintiff: Ali Colak Defendant: Ghalloub Ghalloub
Representation:	Counsel: Plaintiff: Mr J Turnbull SC Defendant: Mr A J J Renshaw Solicitors: Plaintiff: AJB Stevens Lawyers Defendant: Sparke Helmore Lawyers
File Number(s):	2015/302011
Publication restriction:	None