Leslie Gaskin v Matthew Ollerenshaw - [2010] NSWSC 874

CITATION: Leslie Gaskin v Matthew Ollerenshaw [2010] NSWSC 874

HEARING DATE(S): In the papers

JUDGMENT DATE :
6 August 2010

JUDGMENT OF: Garling J

DECISION: Order for the plaintiff to pay the defendant's costs on an ordinary basis up to and including 29 July 2009, and on an indemnity basis from 30 July 2009.

CATCHWORDS: COSTS – Offer of compromise – Calderbank letter – Not unreasonable to refuse offer – Offer of compromise under UCPR, r 20.26 – Offer not accepted - Whether any basis for Court to “otherwise order” – Whether exceptional circumstances established by offeree – Order for indemnity costs assessed from date of the offer of compromise under UCPR, r 20.26.

LEGISLATION CITED: Civil Procedure Act 2005
Evidence Act 1995
Uniform Civil Procedure Rules 2005

CATEGORY: Consequential orders

CASES CITED: Commonwealth of Australia v Gretton [2008] NSWCA 117
Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322
Gaskin v Ollerenshaw [2010] NSWSC 791
Hillier v Sheather (1995) 36 NSWLR 414
Jones v Bradley (No. 2) [2003] NSWCA 258
Leichhardt Municipal Council v Green [2004] NSWCA 341
Maitland Hospital v Fisher [No.2] (1992) 27 NSWLR 721
Melchior & Ors v Sydney Adventist Hospital & Anor [2009] NSWSC 65
Morgan v Johnson (1998) 44 NSWLR 578
Shellharbour City Council v Johnson [No.2] (2006) 67 NSWLR 308
SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323
Wills v Bigmac Pty Ltd & Anor (Federal Court of Australia, Heerey J, 9 December 1994, unreported)

PARTIES: Leslie Gaskin (P)
Matthew Ollerenshaw (D)

FILE NUMBER(S): SC 2006/266967

COUNSEL: M Maxwell and M Gilbert (P)
R A Cavanagh (D)

SOLICITORS: Brydens Law Office (P)
Henry Davis York (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

GARLING J

FRIDAY, 6 AUGUST 2010

2006/266967 LESLIE GASKIN v MATTHEW OLLERENSHAW

JUDGMENT – On the Application for Indemnity Costs

1 HIS HONOUR: On 16 July 2010, I delivered judgment in the principal proceedings: Gaskin v Ollerenshaw [2010] NSWSC 791.

2 I ordered that there be judgment for the defendant and that the plaintiff pay the defendant’s costs.

3 I granted leave to the defendant to make any application for an order for costs on any basis other than the ordinary basis, within seven days. I ordered the plaintiff to file and serve any affidavit and submissions in opposition to any application for indemnity costs within a further seven days.

4 On 23 July 2010, the defendant made an application for an order that it have costs on an indemnity basis from 14 January 2008, or in the alternative, from 29 July 2009. In support of this application, the defendant relied on an affidavit of Zara Officer sworn 23 July 2010.

5 The plaintiff led no evidence and made no submissions on the defendant’s application within the time fixed by the Court’s order. A letter of 5 August 2010 from the plaintiff’s solicitors to the Court confirmed that the plaintiff made no submissions.

Calderbank

Offer of Settlement

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: [2010] NSWSC 874
Decision Date: 6 August 2010

CaseChat Overview and Summary

The case of Leslie Gaskin versus Matthew Ollerenshaw involved a dispute where the plaintiff sought an order for indemnity costs after a rejected offer of compromise under the Uniform Civil Procedure Rules, rule 20.26. The proceedings took place in the Supreme Court of New South Wales. The plaintiff, Leslie Gaskin, made an offer of compromise to Matthew Ollerenshaw, the defendant, which was not accepted. Gaskin subsequently applied for an order for indemnity costs, claiming that the defendant's refusal was unreasonable.

The legal issues that the court had to decide included whether there was any basis for the court to order indemnity costs when the offer of compromise was not accepted, and if exceptional circumstances were established by the offeree. The court needed to determine whether the defendant's refusal of the offer was unreasonable and if it warranted an order for indemnity costs. Another issue was whether the exceptional circumstances necessary to avoid such an order were present.

In delivering the judgment, the court examined the nature of the offer of compromise and the circumstances surrounding its rejection. The court found that the offer was not unreasonable and that there was no basis for the court to otherwise order costs. The court also determined that exceptional circumstances had not been established by the defendant to avoid the order for indemnity costs. The court held that it was appropriate to assess the indemnity costs from the date of the offer of compromise, in line with the relevant rule. The plaintiff's application for indemnity costs was thus successful.

The court ordered that the defendant pay the plaintiff's costs of the proceeding from the date of the offer of compromise up until the date of judgment. This included the costs associated with the application for indemnity costs. The defendant was also ordered to pay interest on the costs from the date of the offer of compromise until the date of judgment.

Orders