Supreme Court
New South Wales
Medium Neutral Citation: Lawson v Gana Holdings Pty Ltd [2022] NSWSC 1159 Hearing dates: 26 August 2022 Date of orders: 26 August 2022 Decision date: 26 August 2022 Jurisdiction: Common Law Before: Campbell J Decision: (1) The amended notice of notion of 24 August 2022 is dismissed with no order as to costs.
Catchwords: CIVIL PROCEDURE – costs – application for a special order as to costs – indemnity costs sought in circumstances where offer to compromise made – application of r 42.15A Uniform Civil Procedure Rules 2005 (NSW)
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 42.14, 42.15A
Cases Cited: Bates v Cooke (No 2) [2014] NSWSC 1322
Calderbank v Calderbank [1976] Fam 93
Della Franca v Lorenzato; Burwood Council v Lorenzato (No 2) [2022] NSWCA 53
Texts Cited: Nil
Category: Costs Parties: William Lawson (Plaintiff)
Gana Holdings Trust trading as Gillis Delaney Lawyers (Defendant)Representation: Counsel:
Solicitors:
T. Harris-Roxas (Defendant)
K&L Gates (Defendant)
File Number(s): 2017/370856 Publication restriction: Nil
Judgment
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This is my judgment in the matter of Lawson v Gana Holdings Pty Ltd. This case was one of five claims for professional negligence, heard together by me, against the same solicitors, arising out of the same matrix of fact. I gave my judgment in each of the cases on 25 March 2022. My principal judgment, as I styled it, was given in the matter of Lavars v Gillis and Ors [2022] NSWSC 13. The judgment in Mr Lawson’s case, is in the matter of Lawson v Gillis and Ors [2022] NSWSC 185 (“Lawson”).
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In Mr Lawson's case, my orders were:
Judgment for each defendant as against the plaintiff.
The plaintiff to pay the defendant's costs.
Liberty to apply on short notice.
Within the time permitted by the rules, the defendants gave notice that they wish to apply for a special order as to costs more because of formal offers made which were no less favourable to the defendants than the result.
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The first alternative is an order that the plaintiff pay the defendant's costs up to and including 5pm on 22 May 2019, on the ordinary basis, and thereafter, on the indemnity basis. The ground for that form of the order is set out in the affidavit of Julia Hewitt, solicitor, affirmed on 4 May 2022. That affidavit, relevantly, attaches a letter in the familiar Calderbank form, dated 22 May 2019, offering a settlement in the sum of $330,000, and costs in the sum of $65,000.
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In the second alternative, the defendants seek an order that the plaintiff pay the defendant’s costs up until 5pm on 10 July 2019 on the ordinary basis, and thereafter on the indemnity basis as agreed or assessed. The grounds for that offer are set out in Ms Hewitt’s second affidavit, affirmed on 16 August 2022. That claim is based upon a letter dated 10…
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- Case
- [2022] NSWSC 1159
- Decision Date
CaseChat Overview and Summary
The court had to determine whether the plaintiff's recovery was greater than the defendant's offer to compromise, and if so, whether the plaintiff was entitled to indemnity costs. Rule 42.15A of the Uniform Civil Procedure Rules 2005 (NSW) provides that a party may be ordered to pay another party's costs on an indemnity basis if that party made an offer to compromise and the offer was not accepted, and the party making the offer recovers less at trial than was offered. The court considered the terms of the offer, the judgment, and the final costs awarded to assess whether the plaintiff's recovery exceeded the offer and if the defendant's position at trial was significantly worse than the terms of the offer.
In ruling on the application, the court held that the plaintiff's recovery did not exceed the defendant's offer to compromise, as the terms of the judgment and the costs awarded did not result in the plaintiff receiving a greater amount than what was offered. Consequently, the plaintiff was not entitled to indemnity costs. The court dismissed the application for special orders as to costs, concluding that the plaintiff's recovery did not meet the criteria for indemnity costs under rule 42.15A. The court's decision was based on the comparison of the offer, the judgment, and the final costs, and it was determined that the plaintiff did not recover more than the defendant's offer to compromise.
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