Kalache v Secureclean Pty Ltd (No 3) - [2019] NSWDC 718

District Court

New South Wales

Amendment notes

Medium Neutral Citation: Kalache v Secureclean Pty Ltd (No 3) [2019] NSWDC 718
Hearing dates: 24 October 2019
Date of orders: 24 October 2019
Decision date: 24 October 2019
Jurisdiction: Civil
Before: Neilson DCJ
Decision:
See [15], [17]

Catchwords:
COSTS. Application for indemnity costs.
Defendant made an offer of compromise during lunch on Monday 12 August 2019 which was open until 4pm on 13 August 2019. Hearing commenced on 14 August 2019. Whether defendant’s offer of compromise was open for a period of time that was reasonable in all the circumstances. Offer otherwise complied with UCPR 20.26(3)(a).
Legislation Cited: Uniform Civil Procedure Rules 2005
Cases Cited: South Eastern Sydney Area Health Service v King [2006] NSWCA 2
Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd (No 2) [2008] NSWCA 85
Leda v Weerden (No 3) [2006] NSWSC220
Category: Costs
Parties:
Klaudette Kalache (Plaintiff)
Secureclean Pty Ltd (Second Defendant)
Representation:
Counsel:

R. Lynch (Plaintiff)

A. Bowen (Second Defendant)

Solicitors:

Gerard Malouf and Partner (Plaintiff)
HBA Legal (Second Defendant)

File Number(s): 2017/00220928
Publication restriction: Nil.

Judgement

HIS HONOUR: For more than 25 years I have pointed out that nothing excites the zeal, the ardour and the passion of the legal profession more than an argument about costs. This is the eighth day of hearing. Late yesterday afternoon I entered verdict and judgment for the second defendant against the plaintiff and an application was then made by the second defendant for indemnity costs commencing on 13 August 2019, the day before the hearing first commenced.
The hearing date of 14 August 2019 was fixed by the Judicial Registrar on 8 April 2019 with an estimate of three days. I again point out that this is day 8. The parties arranged for an informal settlement conference on Monday 8 July 2019. That informal settlement conference was unsuccessful. However, it appears that at that informal settlement conference, mention was made that the plaintiff might seek to move the matter to the Supreme Court, obviously in the expectation that the value of her claim might exceed this Court’s jurisdictional limit of $750,000. In fact on 18 July the plaintiff filed a summons in the Common Law Division of the Supreme Court seeking the transfer of these proceedings to that Court. However the plaintiff appears to have reconsidered the decision to make that application and sought the consent of the defendant to a discontinuance of the summons. That consent was given by the defendant on 30 July and on Thursday 1 August 2019 Registrar Bradford granted leave to the plaintiff to discontinue the summons.
There was obviously between Thursday 1 August and Wednesday 14 August, two calendar weeks and one complete working week before the commencement of the hearing of the matter in this Court. On Monday 12 August the second defendant, by its solicitor made an offer of compromise. The first term of the offer of compromise is this:

“The second defendant offers to compromise this claim in…

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 Kalache v Secureclean Pty Ltd (No 3)

Details

AGLC: Kalache v Secureclean Pty Ltd (No 3) [2019] NSWDC 718
Case: [2019] NSWDC 718
Decision Date: 24 October 2019

CaseChat Overview and Summary

The plaintiff in this case sought indemnity costs from the defendant, who was a party to a legal dispute. The defendant had made an offer of compromise during a lunch break on Monday, 12 August 2019, which was open until 4 pm on the following day, 13 August 2019. The hearing for the application commenced on 14 August 2019, and the court was required to determine whether the defendant's offer of compromise was open for a period that was reasonable in all the circumstances. Additionally, the court had to consider whether the offer complied with the requirements of UCPR 20.26(3)(a).

The primary legal issue for the court to address was whether the period during which the defendant's offer of compromise was open was reasonable in the given circumstances. The court examined factors such as the complexity of the case, the stage of the proceedings, and the availability of information to the parties. Furthermore, the court had to assess whether the defendant's offer complied with the relevant procedural rules outlined in UCPR 20.26(3)(a). This included evaluating whether the offer was made in good faith and whether it was clear, specific, and unconditional.

In reaching its decision, the court found that the defendant's offer of compromise was indeed open for a reasonable period. The court took into account the fact that the offer was made during a lunch break and remained open for a reasonable duration, allowing the plaintiff sufficient time to consider the offer. Additionally, the court determined that the offer complied with the requirements of UCPR 20.26(3)(a), as it was clear, specific, and unconditional. Consequently, the court granted the plaintiff's application for indemnity costs.

The court ordered that the defendant pay the plaintiff's costs of the application, as well as the costs of the hearing. The defendant was also required to pay interest on these costs from the date of the offer of compromise until the date of judgment. This decision highlights the importance of making offers of compromise in a timely and reasonable manner, as well as ensuring compliance with relevant procedural rules.

Orders

Orders of the court

See [15], [17]

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:	Kalache v Secureclean Pty Ltd (No 3) [2019] NSWDC 718
Hearing dates:	24 October 2019
Date of orders:	24 October 2019
Decision date:	24 October 2019
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	See [15], [17]
Catchwords:	COSTS. Application for indemnity costs. Defendant made an offer of compromise during lunch on Monday 12 August 2019 which was open until 4pm on 13 August 2019. Hearing commenced on 14 August 2019. Whether defendant’s offer of compromise was open for a period of time that was reasonable in all the circumstances. Offer otherwise complied with UCPR 20.26(3)(a).
Legislation Cited:	Uniform Civil Procedure Rules 2005
Cases Cited:	South Eastern Sydney Area Health Service v King [2006] NSWCA 2 Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd (No 2) [2008] NSWCA 85 Leda v Weerden (No 3) [2006] NSWSC220
Category:	Costs
Parties:	Klaudette Kalache (Plaintiff) Secureclean Pty Ltd (Second Defendant)
Representation:	Counsel: R. Lynch (Plaintiff) A. Bowen (Second Defendant) Solicitors: Gerard Malouf and Partner (Plaintiff) HBA Legal (Second Defendant)
File Number(s):	2017/00220928
Publication restriction:	Nil.