Itskos v The Nominal Defendant (No 2)

District Court

New South Wales

Medium Neutral Citation:

Itskos v The Nominal Defendant (No 2) [2021] NSWDC 485

Hearing dates:

19 August 2021

Date of orders:

22 September 2021

Decision date:

22 September 2021

Jurisdiction:

Civil

Before:

J Smith SC, DCJ

Decision:

Orders of the Court are found at [16] of this judgment

Catchwords:

COSTS – Variation of costs order – contributory negligence – offers of compromise - ordinary and indemnity basis

Legislation Cited:

Uniform Civil Procedure Rules 2005

Cases Cited:

Equity 8 Pty Limited v Shaw Stockbroking Limited [2007] NSWSC 503

Morgan v Johnson (1998) 44 NSWLR 578

Ryan v Workers Compensation Nominal Insurer (No 2) [2020] NSWCA 129

Vale v Eggins (No 2) [2007] NSWCA 12

Category:

Costs

Parties:

Carlo Itskos (Plaintiff)
The Nominal Defendant (Defendant)

Representation:

Counsel:
Mr W Fitzsimmons SC (Plaintiff)

Solicitors:
Marocchi Law (Plaintiff)
Moray & Agnew Lawyers (Defendant)

File Number(s):

2017/141335

Publication restriction:

Nil

Judgment

1. On 18 January 2015 the plaintiff was injured in a motorcycle accident. He claimed that the accident was caused by the negligence of the driver of another vehicle but he was unable to identify either the vehicle or the driver. For that reason, he commenced proceedings against the Nominal Defendant.

2. On 17 June 2021 I gave judgment for the plaintiff in the sum of $585,000 and ordered the defendant to pay 90% of the plaintiff’s costs. Both the damages and costs orders were made on the basis of my conclusion that the plaintiff’s own negligence had contributed to the accident.

3. The plaintiff now applies for a variation of the costs order. He relies on three offers of compromise made by him during the course of the proceedings under r 42.14 of the Uniform Civil Procedure Rules 2005 (UCPR). The following facts were not in dispute and are taken from the plaintiff’s written submissions.

4. The proceedings were commenced on 11 May 2017. On 8 May 2018 the plaintiff served an expert liability report. On 28 May 2018 the plaintiff served an offer of compromise being an offer of judgment for the plaintiff in the sum of $360,000 (First Offer). That offer was not accepted. On 2 June 2020 the defendant served an offer of compromise being for a verdict for the defendant with each party to pay its own costs. That offer was not accepted by the plaintiff.

5. On 7 September 2020 the parties engaged in mediation. As a result of that mediation, damages were agreed in the sum of $650,000. The issue of liability remained contested.

6. Following the mediation, the defendant advised that the matter would proceed to trial and that it would make no further offers.

7. On 8 September 2020 the plaintiff served an offer of compromise on the basis that there be a verdict for the plaintiff with the damages reduced by 50% for contributory negligence (Second Offer). That offer was not accepted.

8. On 21 May 2021 the plaintiff served an offer of compromise on the basis of a verdict for…