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Lewis v Doyle (No 2)

Lewis v Doyle (No 2)

Case [2022] NSWSC 447 27 April 2022

Costs

Offers of Compromise

Bankruptcy

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Lewis v Doyle (No 2) [2022] NSWSC 447
Hearing dates: On the papers
Date of orders: 27 April 2022
Decision date: 27 April 2022
Jurisdiction: Common Law
Before: Davies J
Decision:
I order the defendant to pay the plaintiff’s costs in the sum of $255,000.00.

Catchwords:
COSTS – indemnity costs – three offers of compromise served by plaintiff – where verdict exceeded all three offers - where first offer served three days after proceedings commenced – not unreasonable for defendant to have rejected offer – second offer served months after pleadings closed and following mediation – unreasonable for defendant to have rejected offer – plaintiff seeking gross sum costs order – where defendant had become bankrupt since proceedings commenced – where defendant had unnecessarily put the plaintiff to proof of matters that should not have been in issue – gross sum costs order made

Legislation Cited:
Civil Procedure Act 2005 (NSW) s 98
Evidence Act 1995 (NSW) s 91
Supreme Court Rules 1970 (NSW) Pt 52A r 6

Cases Cited:
Bobb v Wombat Securities Pty Ltd (No 2) [2013] NSWSC 863
Chaina v Presbyterian Church (NSW) Property Trust (No 26) [2014] NSWSC 1009
Hamod v State of New South Wales [2011] NSWCA 375
Hamod v New South Wales (No 13) [2009] NSWSC 756
Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213
Lewis v Doyle [2022] NSWSC 92
Miles v Doyle (No 3) [2021] NSWSC 1524
Young v Hones (No 3) [2014] NSWSC 499
Zepinic v Chateau Constructions (Aust) Ltd (No. 2) [2014] NSWCA 99

Texts Cited:
Nil

Category: Costs
Parties: Darren John Lewis (Plaintiff)
Philip William Doyle (Defendant)
Representation:
Counsel:
On the papers
Solicitors:
Carroll & O’Dea (Plaintiff)
Hall Partners (Defendant)

File Number(s): 2018/200890
Publication restriction: Nil

Judgment

On 18 February 2022 I gave judgment for the plaintiff against the defendant in the sum of $1,353,850.00: Lewis v Doyle [2022] NSWSC 92. The plaintiff indicated that he would be seeking a costs order other than the usual order that the defendant paid the plaintiff’s costs. Such an application has now been made, and the parties have agreed that I should determine the application on the papers without a further hearing.
The plaintiff seeks that the defendant pay costs on an ordinary basis up to one of three dates when offers of compromise were served by the plaintiff, and thereafter that the defendant pay the plaintiff’s costs on an indemnity basis. In addition, the plaintiff seeks a gross sum costs order under s 98(4)(c) of the Civil Procedure Act 2005 (NSW).
The defendant, in his submissions, does not appear to oppose the making of an order for indemnity costs from the date of one of the offers of compromise (although he does not identify which is the appropriate one), but appears to oppose a gross sum costs order being made, while conceding that such an order was made against the same defendant in other proceedings involving similar issues: Miles…

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 Lewis v Doyle (No 2)

Details

AGLC: Lewis v Doyle (No 2) [2022] NSWSC 447
Case: [2022] NSWSC 447
Decision Date: 27 April 2022

CaseChat Overview and Summary

The case of Lewis v Doyle (No 2) involved a dispute between the plaintiff, Lewis, and the defendant, Doyle. The matter was before the court to determine the appropriate costs order in light of various offers of compromise made during the proceedings. Lewis had served three offers of compromise on Doyle. The first offer was made three days after the commencement of the proceedings, the second months after the pleadings had closed, and the third following a mediation process. The verdict rendered by the court exceeded all three offers. Lewis sought a gross sum costs order, arguing that Doyle had unreasonably rejected the second offer and unnecessarily put Lewis to proof of matters that should not have been in issue.

The court considered the principles governing indemnity costs and the factors pertinent to the assessment of offers of compromise. It determined that while the first offer was not unreasonable for Doyle to reject, the second offer was made at a stage when it was unreasonable for Doyle to do so. Additionally, the court found that Doyle had unnecessarily put Lewis to proof on certain matters, which should not have been in issue. Given these findings, the court concluded that a gross sum costs order was appropriate, particularly in light of Doyle's subsequent bankruptcy, which made it unlikely that he would be able to pay any costs awarded against him.

The reasoning of the court was grounded in the need to encourage the making of reasonable offers of compromise and to prevent parties from unnecessarily prolonging litigation. The court emphasised the importance of timeliness and reasonableness in offers of compromise and the consequences of failing to act in accordance with these principles. Ultimately, the court made a gross sum costs order in favour of Lewis, reflecting the unreasonableness of Doyle's actions and the need to protect Lewis from undue financial burden.

Orders