Gorst v Sydney Equine Coaches Pty Ltd

FEDERAL COURT OF AUSTRALIA

Gorst v Sydney Equine Coaches Pty Ltd [2016] FCA 1067

File number(s):

NSD 555 of 2015

Judge(s):

JAGOT J

Date of judgment:

31 August 2016

Catchwords:

COSTS – where offer of compromise refused and less preferable judgment obtained – whether sufficient basis to justify making order inconsistent with Federal Court Rules r 25.14(1)(b) – substantial change of position following offer

Legislation:

Federal Court Rules 2011 (Cth) rr 1.35, 25.14

Cases cited:

Rakic v Johns Lyng Insurance Building Solutions (Victoria) Pty Ltd(No 2) [2016] FCA 783

Rolls Royce Industrial Power (Pacific) Ltd (Formerly John Thompson (Aust) Pty Ltd) v James Hardie and Coy Pty Ltd (2001) 53 NSWLR 626

Shaw v Jarldorn (1999) 76 SASR 28

Date of hearing:

30 - 31 August 2016

Registry:

New South Wales

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

Regulator and Consumer Protection

Category:

Catchwords

Number of paragraphs:

20

Counsel for the Applicant:

Mr R M Foreman

Solicitor for the Applicant:

Polczynski Lawyers

Counsel for the Respondents:

Mr A T Schlicht

Solicitor for the Respondents:

Simon Nixon & Associates

ORDERS

NSD 555 of 2015

BETWEEN:

SUSAN MAREE GORST

Applicant

AND:

SYDNEY EQUINE COACHES PTY LTD ACN 122 161 504

First Respondent

DEAN ANTHONY DOUGLAS

Second Respondent

JUDGE:	JAGOT J
DATE OF ORDER:	31 AUGUST 2016

THE COURT ORDERS THAT:

1.Judgment be entered for the applicant against the First and Second Respondents, jointly and severally, in the sum of $36,000.

2.The First and Second Respondents are to pay the applicant’s costs up to 8 March 2016 as agreed or taxed, and each party is to pay its own costs of the proceedings thereafter.

3.Order 2 of the Orders of 28 June 2016 be vacated.

4.Order 1 above be stayed for a period of 28 days from the date of these orders.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

JAGOT J:

1. The only outstanding issue in this matter upon which reasons for judgment are required is the effect of an offer of compromise made on 13 August 2015, pursuant to r 25.14(1) of the Federal Court Rules 2011 (Cth) (the Rules). 

2. The respondents offered to settle the applicant’s claim for the sum of $85,000, with costs also to be paid.  As noted, the offer was a formal offer in accordance with the relevant rule.  The applicant did not accept that offer.  Subsequently, as a result of discussions between the parties spurred by a joint report of the experts which was provided to them on the second day of hearing, the parties have agreed to settle the proceedings apart from this issue.  The terms of settlement are that there be judgment for the applicant in the sum of $36,000, and the respondents pay the applicant’s costs of the proceedings up to 15 August 2015 as agreed or taxed.

3. The remaining issue for determination is what should be done with costs from 15 August 2015 onwards. 

4. Unsurprisingly,…