Lynch v Sydney Ferries - [2010] NSWSC 1463

CITATION: Lynch v Sydney Ferries [2010] NSWSC 1463

HEARING DATE(S): 8 December 2010

JUDGMENT DATE :
8 December 2010

JURISDICTION: Equity Division
Admiralty List

JUDGMENT OF: Rein J

DECISION: Orders made on 24 November 2010 stand.

CATCHWORDS: PROCEDURE - costs - maximum costs orders and capped costs - statutory cap on recovery of costs in personal injuries actions - where plaintiff made offer of compromise to defendants which was not accepted - where plaintiff accepted defendants' offer of compromise for the same amount and containing offer to pay costs on the ordinary basis - whether plaintiff entitled to indemnity costs from the defendants to avoid capping of costs in Legal Profession Act

LEGISLATION CITED: Legal Profession Act 2004 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

CATEGORY: Consequential orders

CASES CITED: Shellharbour City Council v Johnson (No. 2) (2006) 67 NSWLR 308

PARTIES: Orion Evan Lynch by his tutor Elizabeth Lynch (plaintiff)
Sydney Ferries Corporation (first defendant)
Peter Lynch (second defendant)
Keith Sutton (third defendant)

FILE NUMBER(S): SC 2009/287068

COUNSEL: A J Stone (plaintiff)
E G H Cox (defendants)

SOLICITORS: Stacks/Goudkamp (plaintiff)
HWL Ebsworth Lawyers (first defendant)
Curwood Lawyers (second and third defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
ADMIRALTY LIST

Rein J

Date of Hearing: 8 December 2010
Date of Judgment: 8 December 2010

2009/287068 Orion Evan Lynch by his Tutor Elizabeth Lynch v Sydney Ferries Corporation and ors

JUDGMENT (EX TEMPORE)

1 REIN J: On 24 November 2010, I approved a settlement that had been reached between the plaintiff, an infant, through his tutor. The settlement included a provision that the defendants pay the plaintiff $10,000 plus costs as agreed or assessed: see annexure B to the affidavit of Mr Tom Goudkamp affirmed 22 November 2010.

2 The plaintiff had, on 6 May 2010, offered to compromise the claim for “$10,000 plus costs”: see annexure A to Mr Goudkamp’s affidavit. That offer was not accepted within the time specified for acceptance in the offer and in accordance with Rule 20.26 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). The offer which was accepted by the plaintiff was served on 29 October 2010.

3 The plaintiff’s solicitors are concerned that s 338 of the Legal Profession Act 2004 (NSW) caps their costs at 20 per cent of the amount recovered (that is $4,000) or $10,000, whichever is the higher. I infer from that concern that their claim for costs would exceed $10,000.

4 The plaintiff seeks to avoid the consequence of the legislative capping by inviting the defendants’ solicitors to agree that capping will not apply, or alternatively, by asking the Court to make an order that the defendants pay indemnity costs. This last argument is based on the proposition that the defendants did not accept the plaintiff’s offer of compromise of 6 May, and the plaintiff has now, by the orders made on 24 November, done at least as well as the offer of compromise of 6 May.

5 The defendants’ principal…

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 Lynch v Sydney Ferries

Details

AGLC: Lynch v Sydney Ferries [2010] NSWSC 1463
Case: [2010] NSWSC 1463
Decision Date: 8 December 2010

CaseChat Overview and Summary

The dispute in Lynch v Sydney Ferries involved the plaintiff, Lynch, and the defendant, Sydney Ferries, regarding the recovery of legal costs in a personal injury action. The case was heard in the Supreme Court of New South Wales. The central issue was whether Lynch, who had initially made an offer of compromise to Sydney Ferries that was not accepted, was entitled to indemnity costs from Sydney Ferries to circumvent the statutory cap on costs recovery outlined in the Legal Profession Act. Sydney Ferries had subsequently made an offer of compromise to Lynch, which included an offer to pay costs on the ordinary basis, and Lynch accepted this offer.

The court had to determine if the statutory cap on costs recovery applied in this scenario, considering the interplay between the offers of compromise made by both parties. Specifically, the court examined whether Lynch's acceptance of Sydney Ferries' offer of compromise, which included an offer to pay costs on the ordinary basis, entitled Lynch to indemnity costs that would avoid the capping provisions in the Legal Profession Act. The court's analysis involved interpreting the statutory language and considering the implications of the procedural history of the offers made by both parties.

In its reasoning, the court concluded that the statutory cap on costs recovery did apply in this instance. The court held that Lynch was not entitled to indemnity costs because the acceptance of Sydney Ferries' offer of compromise, which included an offer to pay costs on the ordinary basis, did not meet the criteria for indemnity costs under the statute. The court emphasised the importance of the procedural steps taken by both parties and the specific terms of the offers made. Consequently, the court decided that the statutory cap on costs recovery was applicable, and Lynch could not recover indemnity costs that would circumvent this cap.

The final orders of the court confirmed that the statutory cap on costs recovery applied, and Lynch was not entitled to indemnity costs from Sydney Ferries. The court's decision underscored the significance of the procedural steps and the specific terms of the offers of compromise in determining the availability of indemnity costs under the Legal Profession Act.

Orders