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Edwards v Devine (No 2)

Edwards v Devine (No 2)

Case [2011] NSWDC 3 31 January 2011

Costs

Calderbank Letter

Indemnity Costs

Civil Litigation & Procedure

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District Court

New South Wales

Medium Neutral Citation: Edwards v Devine (No 2) [2011] NSWDC 3
Hearing dates: 27 January 2011
Decision date: 31 January 2011
Before: Levy SC DCJ
Decision:
The defendant is to pay the plaintiff's costs of the summons on the ordinary basis until 14 January 2011, and on the indemnity basis from 15 January 2011

Catchwords: COSTS - whether the defendant should be ordered to pay indemnity costs where the application by plaintiff for leave to proceed was compelling and succeeded - offer of compromise and Calderbank letter served by plaintiff - plaintiff had offered to pay defendant's costs of the summons and obtained an outcome that was no less favourable
Legislation Cited: Civil Procedure Act 2005, s 56, s 98(1)
Motor Accidents Compensation Act 1999, s 109(2), s 153(1)
Motor Accidents Compensation Regulation 2005, Schedule 1
Uniform Civil Procedure Rules 2005, r 42.14
Cases Cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 2
Baulderstone Hornibrook Engineering Pty Limited v Gordian Runoff Limited (No 2) [2009] NSWCA 12
Caine v Lumley General Insurance Ltd (No 2) [2008] NSWCA 109
Chen v Karandonis [2002] NSWCA 412
Darwich v Sinclair [2009] NSWDC 295
Dean v Stockland Property Management Pty Ltd & Anor (No 2) [2010] NSWCA 141
Dean-Willcocks v Commissioner of Taxation (No 2) [2004] NSWSC 286
Edwards v Devine [2011] NSWDC 2
King Network Group Pty Ltd v Club of Clubs Pty Ltd (No 2) [2009] NSWCA 204
Macquarie Radio Network Pty Ltd v Arthur Dent (No 2) [2007] NSWCA 33
Morgan v Johnson (1998) 44 NSWLR 578
Nominal Defendant v Manning [2000] NSWCA 80; (2000) 50 NSWLR 139
Richards v Cornford (No 3) [2010] NSWCA 134
South Eastern Sydney Area Health Service v King [2006] NSWCA 2
Category: Consequential orders
Parties: Kelly Leanne Edwards (Plaintiff)
Stephen Devine (Defendant)
Representation: Counsel:
Mr P Mooney (Plaintiff)
Mr D Hanna (Solicitor for defendant)
Solicitors:
Steve Masselos & Co (Plaintiff)
Dibbs Barker (Defendant)

File Number(s): 2010/346714

Judgment

On 27 January 2011, the principal judgment was delivered in these proceedings granting the plaintiff leave to proceed, pursuant to s 109(1) of the Motor Accidents Act 1999. The defendant was ordered to pay the plaintiff's costs of the summons by which such leave was sought: Edwards v Devine [2011] NSWDC 2. The plaintiff now makes an application for an order that the defendant pay her costs on the indemnity basis.

The context of that application is that on 19 November 2010, which was one month after the plaintiff had filed her summons, her solicitor served upon the solicitor for the defendant, an offer of compromise, which was in the following terms:

"1. The Defendant to consent to or not oppose the Plaintiff's claim for the relief sought in prayers 1 and 2 of the Summons;

2. The Plaintiff to pay the Defendant's costs as agreed or assessed."

That offer of compromise was served under cover of a Calderbank letter, which, in effect, invited the defendant, within…

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 Edwards v Devine (No 2)

Details

AGLC: Edwards v Devine (No 2) [2011] NSWDC 3
Case: [2011] NSWDC 3
Decision Date: 31 January 2011

CaseChat Overview and Summary

The case of Edwards v Devine (No 2) was heard in the Supreme Court of South Australia. The plaintiff, Mr Edwards, sought an order for the defendant, Mr Devine, to pay the costs of a summons. The dispute centred on whether the defendant should be ordered to pay indemnity costs following the plaintiff's successful application for leave to proceed, despite the plaintiff having made an offer of compromise and sent a Calderbank letter. The plaintiff had proposed to cover the defendant's costs of the summons and had achieved an outcome that was not less favourable to him.

The legal issues that the court had to address included whether the plaintiff's application for leave to proceed was compelling and whether the defendant should be liable for indemnity costs. The court had to consider the principles governing offers of compromise and the effect of a Calderbank letter on indemnity costs. It also had to examine whether the outcome achieved by the plaintiff was no less favourable to him than if he had not made the offer.

The court found that the plaintiff's application for leave to proceed was indeed compelling and had succeeded. It noted that the plaintiff had offered to pay the defendant's costs of the summons and had obtained an outcome that was no less favourable. The court held that the principles established in previous cases required the defendant to pay the plaintiff's costs of the summons on the ordinary basis until a specified date and on the indemnity basis from that date onwards. The court ordered the defendant to pay the plaintiff's costs of the summons on the ordinary basis until 14 January 2011, and on the indemnity basis from 15 January 2011.

Orders

Orders of the court

The defendant is to pay the plaintiff's costs of the summons on the ordinary basis until 14 January 2011, and on the indemnity basis from 15 January 2011

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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Citations

Edwards v Devine (No 2) [2011] NSWDC 3

Most Recent Citation

McGlen-McLeod v Galloway (No. 2) [2012] NSWDC 11

Cases Citing This Decision

McGlen-McLeod v Galloway (No. 2) [2012] NSWDC 11
Citation 1 (Para 1)

…he consistent approach taken in the District Court has been that offers of compromise "plus costs" are valid offers (see also Edwards v Devine (No 2) [2011] NSWDC 3).…

See all citing cases →

Cases Cited

Edwards v Devine [2011] NSWDC 2
Citation 1 (Para 1)

…the Motor Accidents Act 1999. The defendant was ordered to pay the plaintiff's costs of the summons by which such leave was sought: Edwards v Devine [2011] NSWDC 2. The plaintiff now makes an application for an order that the defendant pay her costs on the indemnity basis.…
Dean v Stockland Property Management Pty Ltd (No 2) [2010] NSWCA 141
Citation 2 (Para 1)

…ers, once satisfied of the basis for such orders. That statement was expressly approved in Dean v Stockland Property Management Pty Ltd & Anor (No 2) [2010] NSWCA 141 at [41].…
Richards v Cornford (No 3) [2010] NSWCA 134
Citation 3 (Para 1)

…r 42.14. The fact that the relief sought involved the need to obtain the leave of the court is not a special circumstance: Richards v Cornford (No 3) [2010] NSWCA 134 at [98] ff.…
Darwich v Sinclair [2009] NSWDC 295
Citation 4 (Para 1)

…and ought not be penalised by an order for indemnity costs. In this regard, my attention was drawn to the terms of my judgment in Darwich v Sinclair [2009] NSWDC 295, specifically, with regard to the order for costs made in that case, at paragraph [85], as follows:…
King Network Group Pty Ltd v Club of the Clubs Pty Ltd (No 2) [2009] NSWCA 204
Citation 5 (Para 1)

…Hornibrook Engineering Pty Limited v Gordian Runoff Limited (No 2) [2009] NSWCA 12 at [19]; King Network Group Pty Ltd v Club of Clubs Pty Ltd (No 2) [2009] NSWCA 204 at [11].…
Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd (No 2) [2009] NSWCA 12
Citation 6 (Para 1)

…tion of the facts and surrounding circumstance specific to the case : Baulderstone Hornibrook Engineering Pty Limited v Gordian Runoff Limited (No 2) [2009] NSWCA 12 at [19]; King Network Group Pty Ltd v Club of Clubs Pty Ltd (No 2) [2009] NSWCA 204 at [11].…
Wurridjal v The Commonwealth [2009] HCA 2
Citation 7 (Para 1)

…say, as was submitted by Mr Hanna, on the basis of the principles identified in Aon Risk Services Australia Limited v Australian National University [2009] HCA 2, that the court is precluded from entertaining an application for indemnity costs on account of a claimed failure by the plaintiff to make a specific…
Caine v Lumley General Insurance Ltd (No 2) [2008] NSWCA 109
Citation 8 (Para 1)

…m the date of the offer. The onus is on the offeree to establish a basis for displacing the presumption : Caine v Lumley General Insurance Ltd (No 2) [2008] NSWCA 109 at [32] - [35].…
Cetojevic v Cetojevic [2007] NSWCA 33
Citation 9 (Para 1)

…44 NSWLR 578 at pp581-2; South Eastern Sydney Area Health Service v King [2006] NSWCA 2 at [83]; Macquarie Radio Network Pty Ltd v Arthur Dent (No 2) [2007] NSWCA 33 at [15].…
South Eastern Sydney Area Health Service v King [2006] NSWCA 2
Citation 10 (Para 1)

…ual rule where exceptional circumstances are shown : Morgan v Johnson (1998) 44 NSWLR 578 at pp581-2; South Eastern Sydney Area Health Service v King [2006] NSWCA 2 at [83]; Macquarie Radio Network Pty Ltd v Arthur Dent (No 2) [2007] NSWCA 33 at [15].…
Dean-Willcocks Pty Ltd v Commissioner of Taxation (No 2) [2004] NSWSC 286
Citation 11 (Para 1)

…In rejecting Mr Hanna's submission on this point, I respectfully adopt the opinion of Austin J in Dean-Willcocks v Commissioner of Taxation (No 2) [2004] NSWSC 286 at [27]. There, his Honour stated that where a court was required by statute to be satisfied of certain matters before making orders, there was no gener…
Chen v Karandonis [2002] NSWCA 412
Citation 12 (Para 1)

…In Chen v Karandonis [2002] NSWCA 412, the principles concerning the entitlement of a party to indemnity costs were explained as including circumstances where the litigation has been prolonged to an unnecessary extent, including where there has been an imprudent refusal of an offer of compromise : per Beazley JA at…
Oshlack v Richmond River Council [1998] HCA 11
Citation 13 (Para 1)

…It is well settled that a court will only depart from the usual rule where exceptional circumstances are shown : Morgan v Johnson (1998) 44 NSWLR 578 at pp581-2; South Eastern Sydney Area Health Service v King [2006] NSWCA 2 at [83]; Macquarie Radio Network Pty Ltd v Arthur Dent (No 2) [2007] NSWCA 33 at [15].…

Legislation Cited

Civil Procedure Act 2005 (NSW) 56, 98(1)
3 mentions (from Para 1)
Motor Accidents Compensation Act 1999 (NSW) 109(2)
2 mentions (from Para 1)
Motor Accidents Act 1999 (NSW)
1 mention (from Para 1)
Uniform Civil Procedure Rules 2005 (NSW) 42.14
1 mention

Medium Neutral Citation:	Edwards v Devine (No 2) [2011] NSWDC 3
Hearing dates:	27 January 2011
Decision date:	31 January 2011
Before:	Levy SC DCJ
Decision:	The defendant is to pay the plaintiff's costs of the summons on the ordinary basis until 14 January 2011, and on the indemnity basis from 15 January 2011
Catchwords:	COSTS - whether the defendant should be ordered to pay indemnity costs where the application by plaintiff for leave to proceed was compelling and succeeded - offer of compromise and Calderbank letter served by plaintiff - plaintiff had offered to pay defendant's costs of the summons and obtained an outcome that was no less favourable
Legislation Cited:	Civil Procedure Act 2005, s 56, s 98(1) Motor Accidents Compensation Act 1999, s 109(2), s 153(1) Motor Accidents Compensation Regulation 2005, Schedule 1 Uniform Civil Procedure Rules 2005, r 42.14
Cases Cited:	Aon Risk Services Australia Limited v Australian National University [2009] HCA 2 Baulderstone Hornibrook Engineering Pty Limited v Gordian Runoff Limited (No 2) [2009] NSWCA 12 Caine v Lumley General Insurance Ltd (No 2) [2008] NSWCA 109 Chen v Karandonis [2002] NSWCA 412 Darwich v Sinclair [2009] NSWDC 295 Dean v Stockland Property Management Pty Ltd & Anor (No 2) [2010] NSWCA 141 Dean-Willcocks v Commissioner of Taxation (No 2) [2004] NSWSC 286 Edwards v Devine [2011] NSWDC 2 King Network Group Pty Ltd v Club of Clubs Pty Ltd (No 2) [2009] NSWCA 204 Macquarie Radio Network Pty Ltd v Arthur Dent (No 2) [2007] NSWCA 33 Morgan v Johnson (1998) 44 NSWLR 578 Nominal Defendant v Manning [2000] NSWCA 80; (2000) 50 NSWLR 139 Richards v Cornford (No 3) [2010] NSWCA 134 South Eastern Sydney Area Health Service v King [2006] NSWCA 2
Category:	Consequential orders
Parties:	Kelly Leanne Edwards (Plaintiff) Stephen Devine (Defendant)
Representation:	Counsel: Mr P Mooney (Plaintiff) Mr D Hanna (Solicitor for defendant) Solicitors: Steve Masselos & Co (Plaintiff) Dibbs Barker (Defendant)
File Number(s):	2010/346714