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Levy v Bergseng (No 2)

Levy v Bergseng (No 2)

Case [2008] NSWSC 958 17 September 2008

Costs

Limitation Periods

Civil Litigation & Procedure

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(ix) the defendants shall pay interest on any amount paid by the plaintiff as costs provided that:

(a) the costs, upon which interest is payable, are agreed or allowed on assessment;

(b) interest is calculated from the date of payment of the said costs by the plaintiff and continues only until such time as payment by the defendants of said costs and interest has occurred but not beyond the date of judgment."">

CITATION: Levy v Bergseng (No 2) [2008] NSWSC 958

HEARING DATE(S): 24 April 2008 and subsequent written submissions

JUDGMENT DATE :
17 September 2008

JURISDICTION: Common Law

JUDGMENT OF: Rothman J

DECISION:
(i) the application for indemnity costs is dismissed;
(ii) the orders of 4 April 2008 in this matter be varied by adding two new orders:
"(viii) the defendants pay the plaintiff’s costs of the preparation of the submission in reply before the Costs Review Panel;
(ix) the defendants shall pay interest on any amount paid by the plaintiff as costs provided that:
(a) the costs, upon which interest is payable, are agreed or allowed on assessment;
(b) interest is calculated from the date of payment of the said costs by the plaintiff and continues only until such time as payment by the defendants of said costs and interest has occurred but not beyond the date of judgment."

CATCHWORDS: COSTS – appeal – offer made – indemnity costs sought – offer involved each party bearing own costs – not comply with Rules – not intended to have effect otherwise than in accordance with rules – no indemnity costs – order for reasonable costs below – order for interest on costs paid.

LEGISLATION CITED: Legal Profession Act 1987
Legal Profession Act 2004
Suitors’ Fund Act 1951

CATEGORY: Consequential orders

CASES CITED: Associated Confectionery (Aust) Ltd v Mineral and Chemical Traders Pty Ltd (1991) 25 NSWLR 349
Levy v Bergseng [2008] NSWSC 294
Theiss Contractors Pty Ltd v SCI Operations Pty Ltd (Supreme Court of New South Wales, Rogers CJ in Comm D, 21 September 1990, unreported)
Trustee for Salvation Army v Becker (No 2) [2007] NSWCA 194

PARTIES: Leonard Ari LEVY (Plaintiff, Cross-Defendant)
Karin Elizabeth BERGSENG (First Defendant, First Cross-Plaintiff)
Peter Edward McCROHON (Second Defendant, Second Cross-Plaintiff)
Christine Louise PERRY (Third Defendant, Third Cross-Plaintiff)

FILE NUMBER(S): SC 10245/2007

COUNSEL: M Castle (Plaintiff, Cross-Defendant)
J Sharpe (Defendants, Cross-Plaintiffs)

SOLICITORS: DG Thompson (Plaintiff, Cross-Defendant)
Strategy Legal (Defendants, Cross-Plaintiffs)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ROTHMAN J

17 SEPTEMBER 2008

10245/07 Leonard Ari LEVY v Karin Elizabeth BERGSENG & Ors (No 2)
JUDGMENT

1 HIS HONOUR: On 4 April 2008, the Court issued substantive orders in this appeal: Levy v Bergseng [2008] NSWSC 294 (“the earlier judgment”). The appellant (Mr Levy) was successful in an appeal against the decision of a Costs Review Panel, made under the Legal Profession Act 2004, in which the Costs Review Panel substantially varied the determination of the Costs Assessor. This judgment should be read in conjunction with the earlier…

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 Levy v Bergseng (No 2)

Details

AGLC: Levy v Bergseng (No 2) [2008] NSWSC 958
Case: [2008] NSWSC 958
Decision Date: 17 September 2008

CaseChat Overview and Summary

The second appeal in the case of Levy v Bergseng was heard by the High Court of Australia. The primary concern of this case was the issue of indemnity costs in the context of an offer to settle. The offer, which was made by the defendant, Bergseng, to the plaintiff, Levy, stipulated that each party would bear their own costs if the offer was not accepted and the plaintiff did not recover more than the amount offered. However, the offer did not comply with the relevant court rules regarding the form and content of offers to settle. The key legal issues that the court had to resolve were whether the offer could still be considered under the rules and whether it could be used as a basis for an indemnity costs order.

The High Court held that the offer, although not strictly compliant with the rules, was intended to have effect only in accordance with those rules. The court determined that the offer did not meet the procedural requirements for an indemnity costs order as it was not made in the prescribed manner. However, the court also found that the offer was not intended to have any effect outside of the rules and thus, in this specific context, it could still be considered. As a result, the court concluded that no indemnity costs were warranted. Instead, the court ordered that the defendant pay reasonable costs of the appeal up to the time of the offer and interest on the costs that had already been paid.

In light of the above, the High Court dismissed the appeal regarding indemnity costs. It also ordered that the defendant pay the plaintiff's reasonable costs of the appeal up to the time of the offer, as well as interest on the costs that had been paid. This decision underscored the importance of strict compliance with court rules concerning offers to settle and the potential consequences of failing to adhere to these rules.

Orders