Jurisich v Ralston (No 2) - [2016] NSWDC 197

District Court

New South Wales

Medium Neutral Citation: Jurisich v Ralston (No 2) [2016] NSWDC 197
Hearing dates: 15 June 2016
Date of orders: 15 June 2016
Decision date: 15 June 2016
Jurisdiction: Civil
Before: P Taylor SC DCJ
Decision:
Defendants pay the plaintiff’s costs of the proceedings, those costs to be assessed on an indemnity basis on and from 1 July 2014.

Catchwords: COSTS – offer of compromise – small but genuine compromise – arguable defence – amendment of claim during acceptance period – offer not accepted – discretion – indemnity costs from later date
Legislation Cited: Uniform Civil Procedure Rules 2005, Pt 42, r 20.26, 42.14
Cases Cited: Caine v Lumley General Insurance Ltd (No 2) [2008] NSWCA 109
Connor v Hatgis (No 2) [1995] NSWCA 92
Elite Protective Personnel Pty Ltd and Anor v Salmon [2007] NSWCA 322
Jurisich v Ralston [2016] NSWDC 82
Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721
Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344
Robb Evans of Robb Evans & Associates v European Bank Ltd (No 2) [2009] NSWCA 170
Category: Costs
Parties: Helen Jurisich (plaintiff)
John Malbon Ralston and 8 others trading as ‘Pigott Stinson’ (defendants)
Representation:
Counsel:
Mr M Sealey (plaintiff)
Solicitors:
TressCox Lawyers (plaintiff)
Yeldham Price O’Brien Lusk (defendants)

File Number(s): 2014/82132
Publication restriction: None

Judgment

The plaintiff, Helen Jurisich, applies for an order for costs on an indemnity basis, having previously succeeded in obtaining judgment (see Jurisich v Ralston [2016] NSWDC 82). She relies on two offers of compromise: the first dated 15 May 2014, some two months after commencement of the proceedings, about three months before a defence was filed and seven months before the service of evidence; and a second offer of compromise dated 21 July 2015, some seven weeks approximately before the commencement of the trial.
No argument was raised that the offers, or either of them, were not in compliance with r 20.26 of the Uniform Civil Procedure Rules 2005 (“UCPR”).

THE SECOND OFFER

The second offer of compromise offered to settle for an amount of $550,000, an amount approximately $160,000 less than the amount awarded taking into account the different amount of interest applicable at the time of the offer. Thus this represents a compromise of about 22%.
This offer was accompanied by a detailed letter explaining the amount of the compromise.
The defendants say in respect of the second offer that there were arguable defences on duty, breach and causation. The existence of arguable defences is insufficient to warrant a departure from the ordinary rule concerning the plaintiff’s entitlement to indemnity costs. Were the second offer the only relevant matter I would award indemnity costs to the plaintiff from the day following the second offer in accordance with r 42.14 of the UCPR.

THE FIRST OFFER

The primary argument on this application concerns whether the plaintiff should be entitled to a special costs order by reason of the first offer.…

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 Jurisich v Ralston (No 2)

Details

AGLC: Jurisich v Ralston (No 2) [2016] NSWDC 197
Case: [2016] NSWDC 197
Decision Date: 15 June 2016

CaseChat Overview and Summary

The case of Jurisich v Ralston (No 2) involved the plaintiff, Jurisich, and the defendants, Ralston, in a dispute concerning the assessment of costs within the context of an offer of compromise. The matter was heard in the Supreme Court of Victoria. The primary issue revolved around whether the defendants were liable for indemnity costs following a failed offer of compromise. Specifically, the court had to determine if the plaintiff's amendment of the claim during the acceptance period of the offer affected the validity of the offer and whether the defendants were entitled to indemnity costs from a later date.

The court examined the principles of offers of compromise, particularly focusing on the conditions under which such offers can be considered small but genuine compromises. The court noted that an offer of compromise is only valid if it is made in good faith and is a small but genuine compromise. The defendants had made an offer which the plaintiff did not accept, leading to the plaintiff's subsequent amendment of the claim during the acceptance period. The court had to decide whether this amendment invalidated the offer and if the defendants were still entitled to indemnity costs from a later date. The court found that the defendants had made a genuine offer of compromise that was arguable, and the plaintiff's amendment of the claim did not affect the validity of the offer. Consequently, the court ruled that the defendants were liable for indemnity costs from a later date.

In light of the above, the court ordered that the defendants pay the plaintiff's costs of the proceedings, to be assessed on an indemnity basis from 1 July 2014. This decision underscored the importance of adhering to the principles of offers of compromise and the court's discretion in assessing indemnity costs.

Orders

Orders of the court

Defendants pay the plaintiff’s costs of the proceedings, those costs to be assessed on an indemnity basis on and from 1 July 2014.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Jurisich v Ralston (No 2) [2016] NSWDC 197
Hearing dates:	15 June 2016
Date of orders:	15 June 2016
Decision date:	15 June 2016
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	Defendants pay the plaintiff’s costs of the proceedings, those costs to be assessed on an indemnity basis on and from 1 July 2014.
Catchwords:	COSTS – offer of compromise – small but genuine compromise – arguable defence – amendment of claim during acceptance period – offer not accepted – discretion – indemnity costs from later date
Legislation Cited:	Uniform Civil Procedure Rules 2005, Pt 42, r 20.26, 42.14
Cases Cited:	Caine v Lumley General Insurance Ltd (No 2) [2008] NSWCA 109 Connor v Hatgis (No 2) [1995] NSWCA 92 Elite Protective Personnel Pty Ltd and Anor v Salmon [2007] NSWCA 322 Jurisich v Ralston [2016] NSWDC 82 Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344 Robb Evans of Robb Evans & Associates v European Bank Ltd (No 2) [2009] NSWCA 170
Category:	Costs
Parties:	Helen Jurisich (plaintiff) John Malbon Ralston and 8 others trading as ‘Pigott Stinson’ (defendants)
Representation:	Counsel: Mr M Sealey (plaintiff) Solicitors: TressCox Lawyers (plaintiff) Yeldham Price O’Brien Lusk (defendants)
File Number(s):	2014/82132
Publication restriction:	None