Doyle v Webb (No.2)

[2021] NSWDC 611

District Court

New South Wales

Medium Neutral Citation:

Doyle v Webb (No.2) [2021] NSWDC 611

Hearing dates:

On the papers

Date of orders:

15 November 2021

Decision date:

15 November 2021

Jurisdiction:

Civil

Before:

Abadee DCJ

Decision:

See paragraph 19

Catchwords:

COSTS – application by unsuccessful plaintiff for partial costs order – where amendment to defence occurred 3 weeks before hearing – application by successful defendant for partial indemnity costs – defendant served Rules Offer or alternatively, Calderbank Offer – judgment no less favourable to defendant

Legislation Cited:

Motor Accidents Compensation Act 1999 (NSW) ss 83, 84A

Uniform Civil Procedure Rules 2005 (NSW) rr 20.26, 42.1, 42.15A

Cases Cited:

Doyle v Webb [2021] NSWDC 581

Texts Cited:

Nil

Category:

Costs

Parties:

Warren Doyle (plaintiff)
Tammy Webb (defendant)

Representation:

Counsel:
Mr F Curran for the plaintiff
Mr J Guihot for the defendant

Solicitors:
Carters Law Firm for the plaintiff
Moray & Agnew for the defendant

File Number(s):

2017/00241964

Judgment

Introduction

1. In this proceeding, featuring a claim for damages for personal injury following a motor vehicle accident, I delivered reasons for judgment on 28 October 2021. ^[1]

   1. Doyle v Webb [2021] NSWDC 581

2. In the judgment, I rejected the plaintiff’s claims for past and future economic loss. The only head of loss for which allowance was made was for past out of pocket expenses. As indicated at [220]-[221], allowance was made for the sum of $27,474.02, however that allowance was subject to two defences raised by the defendant’s insurer pursuant to the Motor Accidents Compensation Act 1999 (NSW), concerning s 83 expenses paid ($26,306.31) and payments made under s 84A(3) ($22,500).

3. The parties were invited to confer on dispositive orders, including costs. The parties are unable to agree on those orders; although the dispute is centred on costs.

The dispositive orders

4. The successful defendant submitted that given that the s 84A payments already made well exceed the balance of the award for past out of pocket expenses after the s 83 payments were taken into account, the appropriate order is that judgment be entered for the defendant.

5. The plaintiff did not contend for any different dispositive order.

6. The defendant’s submission is, in my view, unanswerable.

Costs

7. On the question of costs, the plaintiff submits that costs should be awarded in his favour, either entirely or at least until 6 June 2019, when the defendant served her rules offer. The plaintiff cited much of the history of the dispute, including circumstances arising before the plaintiff commenced the proceeding on 9 August 2017. In particular, he cites the three advance payments made by the defendant in 2018 and 2019 which, the plaintiff submitted, indicated the defendant insurer’s own view that his claim had merit; a view later reflected by the content of the defendant’s rules offer.

8. The plaintiff argued that the defendant only amended her defence to add the s 84A(3) defence three weeks up to the hearing. It will be recalled that, but for the allowance made for the s 84A(3) payments, the plaintiff would have had an entitlement to out of pocket expenses in the sum of $1,167.71. The inclusion of the s 84A(3) payments effectively eradicated the plaintiff’s remaining entitlement.

9. The defendant seeks a partial order for indemnity costs under r 42.15A of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’), relying upon an offer of compromise made on 6 June 2019 or, alternatively, a Calderbank offer of the same day, to displace the operation of the usual rule (r 42.1) that the plaintiff pay the defendant’s costs on the ordinary basis.

The Offer of Compromise

10. On 6 June 2019, the defendant offered to compromise the plaintiff’s claim on the basis of the plaintiff obtaining a monetary judgment of $55,000, plus costs as agreed or assessed up to the date of the offer. From the offered sum of $55,000, the defendant was authorised to deduct from that sum all s 83 payments made.

11. The offer was expressed to be made in accordance with the terms of r 20.26 of the UCPR.

12. The covering letter serving the offer of compromise indicated that in the event that the offer of compromise did not comply with the Court rules, it would be relied upon as a Calderbank offer.

13. The defendant submitted that r 42.15A is engaged, having regard to the circumstances that the plaintiff’s claim failed outright. The judgment the defendant obtained was no less favourable to the defendant than that which had been offered. Presumptively, the defendant was entitled to an order that her costs be payable on an indemnity basis from 7 June 2019, and on the ordinary basis beforehand.

14. The plaintiff did not make any submissions as to the validity or effect of the rules offer.

Consideration

15. There is a sense of unreality in the plaintiff’s submissions. The contest at the hearing was dominated by the claims for past and future economic loss. On those issues, the defendant was resoundingly successful. Although costs orders are discretionary, the plaintiff’s submissions take no heed of the ordinary rule that costs should follow the event (r 42.1 of the UCPR). If, as the plaintiff’s submissions suggested, there were several MAS determinations, resolved adversely to the plaintiff, which reduced the scope of the issues for the Court’s determination, then that affords no basis for displacing the usual rule.

16. This is not a case where the defendant should be deprived of costs because of a late amendment, being, in this case, the inclusion of the defence under s 84A(3). As noted, even if that defence had not been included, the effect of the payments made under s 83 was such that the plaintiff would only have been entitled to receive the derisory sum of $1,167.71.

17. Prima facie, and subject to consideration of the rules offer, the usual rule would apply so that the defendant would be entitled to her costs of the proceeding.

18. In circumstances where there is no suggestion that rule 42.15A was not engaged, and no exceptional reason was suggested as to why the rule should not apply according to its terms, in my view, it is appropriate that the defendant’s costs from 7 June 2019 should be payable on an indemnity basis.

ORDERS

19. The Court orders:

1. Judgment for the defendant.

2. The plaintiff is to pay the defendant’s costs of the proceeding:

1. up to 6 June 2019, on the ordinary basis; and

2. from 7 June 2019, on an indemnity basis
   as agreed or assessed.

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Endnote