Glenice Bailey v Warwick La Hood - [2017] NSWSC 1469

Supreme Court

New South Wales

Medium Neutral Citation: Glenice Bailey v Warwick La Hood [2017] NSWSC 1469
Hearing dates: 28 September 2017
Date of orders: 28 September 2017
Decision date: 28 September 2017
Jurisdiction: Common Law
Before: Rein J
Decision:
See [13], [17], [20], [24], [27], [29], [30].

Catchwords: COSTS – whether failure by the plaintiff to accept offers contained in Calderbank letters should lead to an order for indemnity costs – whether an offer of compromise sent by the plaintiff to the defendants could be relied on - whether a specified gross sum order ought to be made, pursuant to s 101(4) of the Civil Procedure Act 2005 (NSW), in relation to the costs payable by the plaintiff to the defendants in circumstances where the defendants have incurred considerable costs successfully defending a hopeless case, the costs assessment process would be protracted and expensive and it is uncertain whether the plaintiff would be able to meet a costs order against her – what the specified gross sum order should be as against the plaintiff – whether interest should be awarded on costs.
Legislation Cited: Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Glenice Bailey v Warwick La Hood [2017] NSWSC 1354
Leichardt Municipal Council v Green [2004] NSWCA 341
Doyle v Hall Chadwick [2012] NSWCA 175
Hamod v State of New South Wales [2011] NSWCA 375
Leary v Leary [1987] 1 WLR 72
Auspine Ltd v Australian Newsprint Mills Ltd [1999] FCA 673
Category: Costs
Parties: Glenice Bailey (Plaintiff)
Warwick La Hood (First Defendant)
Gerrard Toltz (Second Defendant)
Representation: Counsel: Self-represented (Plaintiff)
H. Grace (Defendants)
Solicitors: Yeldham Price O’Brien Lusk (Defendants)

File Number(s): 2013/312794
Publication restriction: Nil

EX TEMPORE Judgment

In this matter I handed down my reasons for judgment on 19 September 2017, Glenice Bailey v Warwick La Hood [2017] NSWSC 1354 ("the principal judgment"), and judgment was entered for the defendants, which I shall refer to as TLH, on the claim of the plaintiff, Ms Bailey. Regard should be had to the principal judgment and I will use the same terminology in these reasons. At the request of the parties the question of costs was stood over until today.
Ms Bailey's case in the principal proceedings was, in short, that Mr La Hood was negligent in advising her that a proposed claim against her former solicitors, Doherty Partners, for not bringing a claim against Moffatt Sullivan, another firm of solicitors, did not have high prospects of success because there was much material signed or written by her and her sister Annette, or recording instructions given by her and her sister, which was inconsistent with the claims she says Doherty Partners should have made on her behalf against Moffatt Sullivan.
I found that Mr La Hood's advice was not negligently given and that none of the other breaches alleged were made out (breaches of fiduciary duty and misleading and deceptive conduct were also alleged). I also held that Ms Bailey had…

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 Glenice Bailey v Warwick La Hood

Details

AGLC: Glenice Bailey v Warwick La Hood [2017] NSWSC 1469
Case: [2017] NSWSC 1469
Decision Date: 28 September 2017

CaseChat Overview and Summary

Glenice Bailey brought an action against Warwick La Hood for damages arising from a motor vehicle accident. The dispute involved complex issues surrounding liability and the extent of the injuries sustained by Ms Bailey. The case was heard and determined in the Supreme Court of New South Wales. The primary legal issues that the court had to decide included whether the plaintiff's failure to accept offers contained in Calderbank letters should lead to an order for indemnity costs, whether an offer of compromise sent by the plaintiff could be relied on, and whether a specified gross sum order should be made under section 101(4) of the Civil Procedure Act 2005 (NSW). Additionally, the court had to consider whether interest should be awarded on costs in light of the defendants' successful defence of a case that was considered hopeless.

The court examined the nature of the Calderbank letters and the plaintiff's responses to these offers. It was found that the plaintiff's failure to accept reasonable offers could justify an order for indemnity costs, but the court needed to consider the circumstances surrounding the rejection of these offers. The court also assessed the plaintiff's offer of compromise and determined whether it could be relied upon. In relation to the specified gross sum order, the court concluded that the defendants had incurred considerable costs defending a case that was ultimately hopeless. The court considered the protracted and expensive nature of the costs assessment process and the uncertainty regarding the plaintiff's ability to meet a costs order against her. The court determined that a specified gross sum order was appropriate and set the amount accordingly. The court further considered whether interest should be awarded on the costs and made a final determination on this point.

In conclusion, the court ordered that the plaintiff should pay a specified gross sum in costs to the defendants. The court also awarded interest on the costs from a specified date. The reasoning behind these decisions was grounded in the principles of indemnity costs, the nature of the Calderbank offers, and the circumstances of the case, including the defendants' successful defence and the plaintiff's ability to meet the costs order.

Orders