Joldzic (bht Joldzic) v Patrick (No 2)
[2021] NSWDC 72
•18 March 2021
District Court
New South Wales
Medium Neutral Citation: Joldzic (bht Joldzic) v Patrick (No 2) [2021] NSWDC 72 Hearing dates: On the papers Date of orders: 18 March 2021 Decision date: 18 March 2021 Jurisdiction: Civil Before: Abadee DCJ Decision: See paragraph 14
Catchwords: COSTS - rejection of defendant's offer of compromise - plaintiff does not obtain more favourable outcome - defendant's application for partial order for indemnity costs
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) rr 20.26, 41.15, 42.15
Cases Cited: Joldzic (bht Joldzic) v Patrick [2021] NSWDC 55
Texts Cited: Nil
Category: Costs Parties: Ms D Joldzic by her tutor Mr M Joldzic (Plaintiff)
Ms M Patrick (Defendant)Representation: Counsel:
Solicitors:
Mr G Bateman for the plaintiff
Mr B Kelleher for the defendant
Shine Lawyers for the plaintiff
Moray & Agnew Lawyers for the defendant
File Number(s): 2014/137178 Publication restriction: Nil
Judgment
Background
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On 9 March 2021 I published reasons for judgment in this proceeding, and ordered a monetary judgment in favour of the plaintiff against the defendant for the sum of $43,983.70[1] . I also ordered the defendant to pay the plaintiff’s costs of the proceeding, as agreed or assessed.
1. Joldzic (bht Joldzic) v Patrick [2021] NSWDC 55
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By a notice of motion dated 12 March 2021, the defendant seeks an order varying the costs order. Specifically, it seeks to substitute the following as the appropriate costs order:
“The defendant is to pay the plaintiff’s costs of the proceeding on an ordinary basis up to 30 January 2020, (and) thereafter, the plaintiff is to pay the defendant’s costs on an indemnity basis.”
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The application is founded upon the plaintiff’s rejection of the defendant’s offer of compromise dated 30 January 2020.
Context for the offer
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The plaintiff commenced the proceeding on 7 May 2014 by statement of claim, on which date she also filed her Statement of Particulars. Her pleading was amended on 15 August 2017.
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By 22 March 2019, the plaintiff had served all of the medico-legal reports that she relied upon in the hearing. The exception was a report from Dr Protulipac, which was dated 14 April 2020 which report, as the defendant pointed out, was primarily directed to the plaintiff’s inability to participate in the proceeding and inability to undergo neuropsychological testing.
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By 24 July 2019, the defendant had served its medico-legal evidence, save for a (2-page) report from Dr Cocks, concerning the question about the plaintiff’s capacity to undergo neuropsychological testing.
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On 9 September 2019, a Medical Assessment Service certificate was issued.
The rules offer
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As indicated, the offer of compromise was made on 30 January 2020. The terms of that offer of compromise were that the whole of the plaintiff’s claim was to be compromised on the basis that:
The defendant would pay to the plaintiff the sum of $100,000, plus costs.
The defendant would pay to the plaintiff’s costs, as agreed or assessed, up to the time the offer is made.
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The offer was open for acceptance for a period of 28 days. It was also expressed to be in accordance with r 20.26 of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’).
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The defendant’s offer of compromise was sent under cover of an explanatory letter, which letter was expressed to be ‘without prejudice save as to costs’ and which, amongst other things, referred to r 20.26 of the UCPR. The letter indicated, correctly enough, that the offer was conditional upon court approval subject to the removal of the tutor. The letter also indicated that if the offer of compromise did not comply with Court rules, the defendant proposed to rely upon it under Calderbank principles.
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The defendant’s offer was not accepted. The defendant, as applicant on the motion, relies upon the operation of r 42.15 of the UCPR, on the basis that the monetary judgment that the plaintiff obtained by the Court’s order on 9 March 2021 was “no more favourable” than the settlement sum offered in the offer of compromise.
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The respondent to the motion, the plaintiff, indicated that she did not wish to make any submissions. In particular, no indication was supplied that the Court might make an order ‘otherwise’ so as to alter the ordinary operation of the rules under r 42.15(2) of the UCPR.
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I find that the rules offer is valid and further, there is no reason why the ordinary operation of the rules should be altered. Further, as the application for variation of the costs order is successful, costs should follow the event with the result that the respondent should pay the costs of that application.
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I therefore accede to the applicant’s motion and make the following orders:
Order 2 made on 9 March 2021 is varied so that:
the defendant is to pay the plaintiff’s costs of the proceeding on an ordinary basis up to 30 January 2020
thereafter, the plaintiff is to pay the defendant’s costs on an indemnity basis
the plaintiff is to pay the defendant’s costs of the notice of motion dated 12 March 2021.
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Endnote
Decision last updated: 18 March 2021
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