Dowedeit v Nominal Defendant (No 2) - [2015] NSWDC 406

District Court

New South Wales

Medium Neutral Citation: Dowedeit v Nominal Defendant (No 2) [2015] NSWDC 406
Hearing dates: 26 August 2015
Date of orders: 26 August 2015
Decision date: 26 August 2015
Jurisdiction: Civil
Before: P Taylor SC DCJ
Decision:
(1)   Refuse the plaintiff’s application and confirm order (2) made on 5 August 2015.
(2)   Grant a stay on the following conditions:
(a)   That within 28 days the defendant pay the judgment sum including any post-judgment interest to the plaintiff’s solicitor on the plaintiff’s solicitor’s undertaking:
(i)      To hold all but $50,000 of that sum in an interest bearing deposit until disposal of an appeal filed by 5pm on 5 November 2015, or if no appeal is filed by that date, until 5pm on 5 November 2015.
(ii)      To forthwith repay that sum deposited including any interest to the defendant’s solicitor in the event that the Court of Appeal gives judgment for the defendant.
(b)   Any appeal by the defendant be prosecuted with all reasonable expedition.
(3)   The costs of the applications of today be the costs of the proceedings.

Catchwords: COSTS – application for indemnity costs – offer of compromise
STAY – on conditions
Legislation Cited: District Court Act 1973, s 128, s 156
Uniform Civil Procedure Rules 2005, r 20.26, r 20.30, r 42.13A, r 42.14
Cases Cited: Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685
County Securities Pty Limited v Challenger Group Holdings Pty Limited (No 2) [2008] NSWCA 273
Dowedeit v Nominal Defendant [2015] NSWDC 182
Elite Protective Personnel Pty Ltd and Anor v Salmon [2007] NSWCA 322
Category: Procedural and other rulings
Parties: Ronald Dowedeit (plaintiff)
Nominal Defendant (defendant)
Representation:
Counsel:
Mr D C Morgan (plaintiff)
Mr J Turnbull (defendant)
Solicitors:
Garling Lawyers (plaintiff)
Curwoods Lawyers (defendant)

File Number(s): 2012/339572
Publication restriction: None

Judgment

APPLICATION FOR INDEMNITY COSTS

On 5 August 2015 this Court made the following orders (see Dowedeit v Nominal Defendant [2015] NSWDC 182):

Judgment in favour of the plaintiff in the sum of $174,550.

Defendant to pay the plaintiff’s costs.

Stay order (2) for two weeks and until further order of the Court if further submissions on costs are received within that time.

The plaintiff, Ronald Dowedeit, has made further submissions and has thereby availed himself of the stay in order (3). He seeks to rely on an offer of compromise on an application for indemnity costs. In the event that Mr Dowedeit’s argument is successful, he would become entitled to indemnity costs from the day following the date of the offer, namely 17 June 2015 (see r 42.14(2)(b) of the Uniform Civil Procedure Rules 2005 (“UCPR”).
The offer proposes as one of its terms that there be judgment for the plaintiff for the sum of $150,000. It is not in contest that the judgment ordered by this Court on 5 August 2015 is no less favourable than that sum and thus, “[u]nless the court orders otherwise” Mr Dowedeit is entitled to an indemnity…

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 Dowedeit v Nominal Defendant (No 2)

Details

AGLC: Dowedeit v Nominal Defendant (No 2) [2015] NSWDC 406
Case: [2015] NSWDC 406
Decision Date: 26 August 2015

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, the plaintiff, Dowedeit, sought indemnity costs against the defendant, Nominal Defendant, following a judgment in the plaintiff's favour. The defendant had made an offer of compromise prior to the judgment, and the plaintiff argued that this constituted a significant factor in their application for indemnity costs. The court was required to determine whether the plaintiff was entitled to indemnity costs based on the defendant's offer of compromise and to consider the appropriate conditions for a stay of the judgment pending any appeal.

The court found that the plaintiff's application for indemnity costs was not justified, as the offer of compromise was not a decisive factor in the outcome of the case. The court emphasised that an offer of compromise is not automatically indicative of the merits of the case, and indemnity costs are not awarded lightly. The court also considered the defendant's ability to pay and the potential prejudice to the plaintiff if the judgment were stayed. In light of these factors, the court decided to grant a conditional stay of the judgment, requiring the defendant to pay the judgment sum into an interest-bearing account pending the outcome of any appeal. The court also ordered that any appeal be prosecuted with all reasonable expedition and that the costs of the applications be the costs of the proceedings.

In summary, the court refused the plaintiff's application for indemnity costs, but granted a stay on conditions, requiring the defendant to pay the judgment sum into an interest-bearing account pending any appeal. The court also ordered that any appeal be prosecuted with all reasonable expedition and that the costs of the applications be the costs of the proceedings. This decision highlights the court's cautious approach to awarding indemnity costs and its willingness to consider conditional stays in appropriate circumstances.

Orders

Orders of the court

(1) Refuse the plaintiff’s application and confirm order (2) made on 5 August 2015.

(2) Grant a stay on the following conditions:

(a) That within 28 days the defendant pay the judgment sum including any post-judgment interest to the plaintiff’s solicitor on the plaintiff’s solicitor’s undertaking:

(i) To hold all but $50,000 of that sum in an interest bearing deposit until disposal of an appeal filed by 5pm on 5 November 2015, or if no appeal is filed by that date, until 5pm on 5 November 2015.

(ii) To forthwith repay that sum deposited including any interest to the defendant’s solicitor in the event that the Court of Appeal gives judgment for the defendant.

(b) Any appeal by the defendant be prosecuted with all reasonable expedition.

(3) The costs of the applications of today be the costs of the proceedings.

Background

Background to the litigation

Full text does not contain this section.

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:	Dowedeit v Nominal Defendant (No 2) [2015] NSWDC 406
Hearing dates:	26 August 2015
Date of orders:	26 August 2015
Decision date:	26 August 2015
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1) Refuse the plaintiff’s application and confirm order (2) made on 5 August 2015. (2) Grant a stay on the following conditions: (a) That within 28 days the defendant pay the judgment sum including any post-judgment interest to the plaintiff’s solicitor on the plaintiff’s solicitor’s undertaking: (i) To hold all but $50,000 of that sum in an interest bearing deposit until disposal of an appeal filed by 5pm on 5 November 2015, or if no appeal is filed by that date, until 5pm on 5 November 2015. (ii) To forthwith repay that sum deposited including any interest to the defendant’s solicitor in the event that the Court of Appeal gives judgment for the defendant. (b) Any appeal by the defendant be prosecuted with all reasonable expedition. (3) The costs of the applications of today be the costs of the proceedings.
Catchwords:	COSTS – application for indemnity costs – offer of compromise STAY – on conditions
Legislation Cited:	District Court Act 1973, s 128, s 156 Uniform Civil Procedure Rules 2005, r 20.26, r 20.30, r 42.13A, r 42.14
Cases Cited:	Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685 County Securities Pty Limited v Challenger Group Holdings Pty Limited (No 2) [2008] NSWCA 273 Dowedeit v Nominal Defendant [2015] NSWDC 182 Elite Protective Personnel Pty Ltd and Anor v Salmon [2007] NSWCA 322
Category:	Procedural and other rulings
Parties:	Ronald Dowedeit (plaintiff) Nominal Defendant (defendant)
Representation:	Counsel: Mr D C Morgan (plaintiff) Mr J Turnbull (defendant) Solicitors: Garling Lawyers (plaintiff) Curwoods Lawyers (defendant)
File Number(s):	2012/339572
Publication restriction:	None