Koropachinsky v Wang (No. 2)

[2018] NSWDC 319

District Court

New South Wales

Medium Neutral Citation:	Koropachinsky v Wang (No. 2) [2018] NSWDC 319
Hearing dates:	28 September 2018
Date of orders:	28 September 2018
Decision date:	28 September 2018
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Judgment for the plaintiff for $178,993.49 plus interest in the sum of $15,104.91, making a total of $194,098.40. (2) Defendants pay the plaintiff’s costs on the ordinary basis up until 24 November 2017 and thereafter on an indemnity basis.
Catchwords:	COSTS – application for indemnity costs – offer of compromise and Calderbank letter – indemnity costs awarded
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56 – 62 Uniform Civil Procedure Rules 2005 (NSW), r 42.14
Cases Cited:	Amaca Pty Ltd v Hicks (No 2) [2011] NSWCA 360 Calderbank v Calderbank [1975] 3 All ER 333 Koropachinsky v Wang (District Court of New South Wales, Gibson DCJ, 28 September 2018)
Category:	Costs
Parties:	Plaintiff: Anna Koropachinsky First Defendant: Congwei Wang Second Defendant: Sunshine Solar & Electrical Pty Ltd
Representation:	Counsel: Plaintiff: Ms M Hamdan Defendant: Mr H M Leung (with leave)   Solicitors: Plaintiff: Cantwell Lawyers Defendant: Fusion Legal
File Number(s):	2017/74662
Publication restriction:	None

Judgment

1. I have handed down judgment earlier today in these proceeding for a claim for motor vehicle property damage where I have given judgment for the plaintiff for the sum of $178,993.49: Koropachinsky v Wang (District Court of New South Wales, Gibson DCJ, 28 September 2018).  I have been addressed on two issues following this, the first is, pursuant to the liberty granted in order 3 of my judgment today, an application for interest for $15,104.91, which would take the total to $194,098.40 and the second is an application for indemnity costs.

2. The basis of the application for indemnity costs is as follows. On 24 November 2017 the solicitors for the plaintiff wrote to the solicitors for the defendant setting out the circumstances of the accident and making what appears to be a Calderbank offer (Calderbank v Calderbank [1975] 3 All ER 333). The solicitors for the plaintiff took the additional precaution of serving an offer of compromise which is dated the day before, namely, 23 November 2017. Indemnity costs are sought from the date of the covering letter of 24 November 2017. The contents of that letter are as follows:

“We are instructed that on 11 October 2016 our client was driving her vehicle at approximately 30 kilometres per hour at Victoria Road, Bellevue Hill New South Wales and was approximately at the road section in front of 142 Victoria Road when your client suddenly pulled out from the side of the road to perform a U‑turn onto the lane going the other direction.  The lanes were separated by a double white line and the place collision was at the bend of the road which was a blind spot for our client.  Our client was unable to avoid the said collision as she was provided with no time or warning to enable her to stop her vehicle or take any other evasive action to avoid the collision.

It is very clear that the incident was solely caused by your client and our client holds you fully liable for its loss in this matter.

However, in the interests of resolving this matter on a commercial basis our client instructs that it is willing to accept from the defendants the sum of $169,975 plus interest in the sum of $10,565 and costs as agreed or assessed in accordance with the New South Wales District Court scale of costs.”

3. This was followed by banking details and a statement that het offer was made pursuant to the principle set out in Calderbank v Calderbank and that the letter in question would be produced in the event that the plaintiff obtained an equal or better outcome to the proceedings.  The offer of compromise which was served as an attachment to this letter is in similar form.

4. As is set out in my judgment the description given by the plaintiff of the accident in its letter was never varied from.  This description and this information were provided early on in these proceedings and represented the case presented by the plaintiff at trial.  At trial the issue of quantum was conceded at the outset and liability was admitted in the closing submissions, which amounted effectively a perpetuation as the merits of the case.

5. The circumstances of this case are a good example of a solicitor complying with the obligations under ss 56 – 62 Civil Procedure Act 2005 (NSW) to make an offer of compromise and couple it with a Calderbank offer setting out the nature of the evidence to be led.  I understand there was similar correspondence sent in 2016.  The sole potential issue of contention would be whether this represented a true compromise or fell within the ambit of being a walk away offer.  The plaintiff’s represented legal representative helpfully takes me to the decision of Basten JA in Amaca Pty Ltd v Hicks (No 2) [2011] NSWCA 360 at [5] where his Honour states:

“[5] The only issue to be determined is whether the offer did indeed involve any element of compromise, being a discount of less than 5% of the judgment: Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344 at [9]. In Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721, a case in which a plaintiff, responding to an appeal, offered to accept an amount $6,090 less than her judgment, being a discount of approximately 2.5% on the total payment awarded, the court noted that, from the point of view of the respondent, the diminution was “real and not trivial or contemptuous”: at 725B. The court assessed the matter in terms of the discretion not to award indemnity costs, a discretion which it declined to exercise in all the circumstances.”

6. I am satisfied that this represented a genuine compromise of the claim in question. Not only is the offer of compromise valid, and I note in this regard that that would be sufficient for the purposes of r 42.14 Uniform Civil Procedure Rules 2005 (NSW), but the Calderbank offer set out in clear and succinct terms the basis upon which the claim the evidence would be led at trial.  It was not reasonable of the defendants to have refused the offer.  Taking all of the account I am satisfied that the plaintiff should be entitled to costs on an indemnity basis from the date of the offer of compromise, namely 24 November 2017. 

Orders

7. Accordingly, I vary orders (1) and (2) of my earlier judgment today as follows:

1. Judgment for the plaintiff for $178,993.49 plus interest in the sum of $15,104.91, making a total of $194,098.40.

2. Defendants pay the plaintiff’s costs on the ordinary basis up until 24 November 2017 and thereafter on an indemnity basis.

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Decision last updated: 29 October 2018