Hardwick v Jankowski (No.2) - [2019] NSWDC 108

District Court

New South Wales

Medium Neutral Citation: Hardwick v Jankowski (No.2) [2019] NSWDC 108
Hearing dates: On the papers
Date of orders: 08 April 2019
Decision date: 08 April 2019
Jurisdiction: Civil
Before: Abadee DCJ
Decision:
See paragraph 16.

Catchwords: PRACTICE AND PROCEDURE – costs – plaintiff’s service of offer of compromise – plaintiff obtains more favourable outcome than the settlement sum offered – application for indemnity costs – whether ‘exceptional circumstances’ applied.
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: South Eastern Area Health Service v King [2006] NSWCA 2
Vale v Eggins (No.2) [2007] NSWCA 12
Category: Costs
Parties: Thomas Peter Hardwick (Plaintiff)
James Jankowski (Defendant)
Representation:
Counsel:
B Tzatzagos (Plaintiff)
D Hanna (Defendant)
Solicitors:
Brydens Lawyers (Plaintiff)
Moray & Agnew (Defendant)

File Number(s): 2018/52201
Publication restriction: Nil

Judgment

I gave judgement in this matter on 1 April 2019 (Hardwick v Jankowski [2019] NSWDC 90), hereafter “the principal reasons”). I gave the parties the opportunity to make submissions as to costs.
The dispute as to costs is as follows. The plaintiff submits that following service of a rules offer on 22 February 2019, it should be entitled to receive its costs on an indemnity basis from 23 February 2019. The defendant submits that “exceptional circumstances” have arisen which should preclude the plaintiff from obtaining the presumed benefit of having obtained a monetary verdict no less favourable than the rules offer it had made.
It will be recalled from the principal reasons that the plaintiff obtained a monetary verdict for the sum of $95,229.10.
On 22 February 2019 solicitors for the plaintiff sent an offer of compromise to the solicitors for the defendant.
The terms of that offer were as follows:

“(1) Verdict and judgement for the plaintiff for the sum of $75,000.
(2) This offer shall remain open for acceptance until 5:00 pm on 15 March 2019.
(3) This offer is made pursuant to rule 20.26 of the Uniform Civil Procedure Rules 2005.”

There was no suggestion by the defendant that this offer of compromise did not comply with the requirements in rule 20.26. There was no suggestion that the defendant did not have sufficient time to consider the offer. There was no suggestion, and the defendant did not complain, that it did not have sufficient information to consider the offer.
The defendant, however, submitted that there were “exceptional circumstances” arising from the plaintiff’s late service of evidence, which meant that the plaintiff should not receive a partial order for indemnity costs arising from the defendant’s rejection of the rules offer and the circumstance that the plaintiff bettered the settlement sum it offered to the defendant.
In this regard, the defendant relied upon the authorities of South Eastern Area Health Service v King [2006] NSWCA 2 (at [85]) and Vale v Eggins (No.2) [2007] NSWCA 12 at [15], where the New South Wales Court of Appeal identified, as one category of case where “exceptional circumstances” arose, the situation where an offeree is…

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 Hardwick v Jankowski (No.2)

Details

AGLC: Hardwick v Jankowski (No.2) [2019] NSWDC 108
Case: [2019] NSWDC 108
Decision Date: 08 April 2019

CaseChat Overview and Summary

In the Federal Court of Australia, Hardwick v Jankowski (No. 2) involved a dispute concerning the application of indemnity costs following the plaintiff's service of an offer of compromise. The plaintiff, Hardwick, had served an offer of compromise to the defendant, Jankowski, under the Uniform Civil Procedure Rules. Hardwick subsequently obtained a more favourable outcome in the proceedings than the sum offered. The court was required to determine whether the plaintiff's application for indemnity costs should be granted, considering the requirement of 'exceptional circumstances' as outlined in the relevant legal principles.

The court identified the primary legal issue as whether the exceptional circumstances existed to justify the award of indemnity costs to Jankowski. The court examined the circumstances under which the offer of compromise was made and the outcome of the proceedings. It considered the principles established in previous cases, which set out that indemnity costs are not awarded as a matter of course but rather in exceptional circumstances. The court also assessed whether the plaintiff's conduct in making the offer of compromise was unreasonable or whether it had a reasonable basis.

The court concluded that the exceptional circumstances necessary to warrant an award of indemnity costs were not present in this case. It found that while the plaintiff's offer of compromise was not accepted and the plaintiff ultimately obtained a more favourable outcome, this alone did not constitute exceptional circumstances. The court considered the overall conduct of the plaintiff in making the offer and found no unreasonableness or lack of basis that would warrant such an award. Consequently, the application for indemnity costs was dismissed.

The final orders of the court were that the application for indemnity costs brought by Jankowski was dismissed, and no orders for costs were made in favour of the plaintiff.

Orders

Orders of the court

See paragraph 16.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Hardwick v Jankowski (No.2) [2019] NSWDC 108
Hearing dates:	On the papers
Date of orders:	08 April 2019
Decision date:	08 April 2019
Jurisdiction:	Civil
Before:	Abadee DCJ
Decision:	See paragraph 16.
Catchwords:	PRACTICE AND PROCEDURE – costs – plaintiff’s service of offer of compromise – plaintiff obtains more favourable outcome than the settlement sum offered – application for indemnity costs – whether ‘exceptional circumstances’ applied.
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	South Eastern Area Health Service v King [2006] NSWCA 2 Vale v Eggins (No.2) [2007] NSWCA 12
Category:	Costs
Parties:	Thomas Peter Hardwick (Plaintiff) James Jankowski (Defendant)
Representation:	Counsel: B Tzatzagos (Plaintiff) D Hanna (Defendant) Solicitors: Brydens Lawyers (Plaintiff) Moray & Agnew (Defendant)
File Number(s):	2018/52201
Publication restriction:	Nil