Lawson v Gana Holdings Pty Ltd - [2022] NSWSC 1159

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
Lavars v Gillis and Ors [2022] NSWSC 13
Lawson v Gillis and Ors [2022] NSWSC 185

Texts Cited:
Nil

Category: Costs
Parties: William Lawson (Plaintiff)
Gana Holdings Trust trading as Gillis Delaney Lawyers (Defendant)
Representation:
Counsel:
T. Harris-Roxas (Defendant)
Solicitors:
K&L Gates (Defendant)

File Number(s): 2017/370856
Publication restriction: Nil

Judgment

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”).
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.

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.
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…

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.

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Details

Case: [2022] NSWSC 1159
Decision Date: 26 August 2022

CaseChat Overview and Summary

The case of Lawson v Gana Holdings Pty Ltd involves a dispute between the plaintiff, Lawson, and the defendant, Gana Holdings Pty Ltd. The plaintiff sought damages for alleged breaches of contract and misrepresentation by the defendant, with the matter proceeding to trial in the Supreme Court of New South Wales. The central issue before the court was whether the plaintiff was entitled to indemnity costs under rule 42.15A of the Uniform Civil Procedure Rules 2005 (NSW). The plaintiff sought such costs on the basis that the defendant made an offer to compromise, which was not accepted, and the defendant's ultimate position at trial was significantly worse than the terms of the offer.

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.

Orders