Lyszkowicz v Colin Earnshaw Homes Pty Ltd
[2002] WASCA 205 (S)
•2 AUGUST 2002
LYSZKOWICZ -v- COLIN EARNSHAW HOMES PTY LTD & ANOR [2002] WASCA 205 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 205 (S) | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:140/2001 | 7 MAY 2002 | |
| Coram: | MURRAY J ANDERSON J PARKER J | 2/08/02 | |
| 1/11/02 | |||
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Award of costs made | ||
| B | |||
| PDF Version |
| Parties: | CZESLAW ADAM LYSZKOWICZ COLIN EARNSHAW HOMES PTY LTD BOGDAN STAWARZ |
Catchwords: | Costs Successful appeal against quantum of damages History of offers to compromise before trial Impact on award of costs as to trial and appeal Turns on own facts |
Legislation: | Nil |
Case References: | Nil Capolingua v Phylum Pty Ltd (1989) 5 WAR 137 Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 Mannix v Loumbos Pty Ltd [2002] NSWCA 32 Oshlack v Richmond River Council (1998) 193 CLR 72 Transit Australia Pty Ltd v Crewford Australia Pty Ltd (1998) 1 QLDR 690 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : LYSZKOWICZ -v- COLIN EARNSHAW HOMES PTY LTD & ANOR [2002] WASCA 205 (S) CORAM : MURRAY J
- ANDERSON J
PARKER J
DECISION : 1 NOVEMBER 2002 FILE NO/S : FUL 140 of 2001 BETWEEN : CZESLAW ADAM LYSZKOWICZ
- Appellant
AND
COLIN EARNSHAW HOMES PTY LTD
First Respondent
BOGDAN STAWARZ
Second Respondent
Catchwords:
Costs - Successful appeal against quantum of damages - History of offers to compromise before trial - Impact on award of costs as to trial and appeal - Turns on own facts
(Page 2)
Legislation:
Nil
Result:
Award of costs made
Category: B
Representation:
Counsel:
Appellant : Ms L M Marche
First Respondent : Mr D G Price
Second Respondent : Mr S M Denman
Solicitors:
Appellant : Leonard Cohen & Co
First Respondent : D G Price & Co
Second Respondent : Pynt & Partners
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Capolingua v Phylum Pty Ltd (1989) 5 WAR 137
Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721
Mannix v Loumbos Pty Ltd [2002] NSWCA 32
Oshlack v Richmond River Council (1998) 193 CLR 72
Transit Australia Pty Ltd v Crewford Australia Pty Ltd (1998) 1 QLDR 690
(Page 3)
1 JUDGMENT OF THE COURT: The appellant's action against the respondents was tried in the District Court on 25 - 27 July 2001 as an assessment of damages. The trial Judge assessed the damages at $57,698. By reason of a history of offers of compromise made under the Rules of the Supreme Court, O 24A the appellant was awarded his costs up to and including 21 January 2000, but thereafter it was ordered that the respondents should have the costs of the action.
2 The appeal against the quantum of damages succeeded. An award of non-pecuniary general damages in the sum of $50,000 was left untouched, as was an award of $1000 to defray possible future medical expenses; otherwise an award of $5000 in respect of loss of earning capacity was increased to $22,000, an award of $1248 for past gratuitous services was increased to $3750, all of which doubled the award of interest from $450 to $900, and this Court awarded special damages of $13,936, the claim for which (with a minor adjustment in relation to the amount) had been refused by the trial Judge on the ground that the claim was for hospital expenses which were statute barred. In the final analysis, this Court set aside the award of $57,698 made by the District Court and substituted an award of $91,586, an increase of $33,888.
3 The appellant's application for the costs of the trial and appeal was opposed. We allowed the parties time to present written submissions in support of their respective arguments and, having received those documents and supporting affidavit evidence in relation to the history of the matter, these are our reasons in respect of the award of costs which, both in respect of the trial and the appeal, lie within the discretion of the Court.
4 The first offer of compromise was that of the respondents made on 12 January 2000 to settle the action for the sum of $60,000, special damages and costs. Special damages had not then been quantified. On 21 February the appellant made a counter-offer to settle the action for $120,000 damages, special damages and costs. This was followed up on 19 June 2000 by providing particulars of some special damages totalling $1075.50 and promising more when the appellant obtained particulars of any costs charged to Medicare. The appellant thereafter in fact provided no such further particulars.
5 The next development was on 12 December 2000 when the respondents increased their offer to $75,000, including special damages, but exclusive of costs. Nothing seems to have eventuated from that and on 21 March 2001 they increased their offer yet again to $90,000 and
(Page 4)
- costs, the offer being made in the context of the disclosure of a little over $1000 in special damages and a reference to the possibility of unspecified further amounts.
6 The appellant eventually responded to that offer on 21 June 2001 by making a counter-offer to settle for $105,000, plus any outstanding matters in respect of which Medicare would require reimbursement and costs. The respondents did not accept that offer and on 18 July informally offered to settle for $75,000 "all in". Thus the matter went for trial.
7 The respondents' argument is that although they appreciate that following the appeal the appellant well and truly exceeded the respondents' offers made in January 2000, December 2000 and July 2001, the appellant has in the final result obtained an award very close to the $90,000 the respondents offered in March 2001. They say that should have been accepted and therefore they should have the costs following the date of that offer.
8 Particularly is that the case the respondents argue because that offer was made in the light of disclosed special damages of $1075.50. They point out that it was not until Friday, 20 July 2001 that the appellant added to that claim the costs incurred with Royal Perth Hospital which were particularised as amounting to $10,960. Even then the appellant did not make the further claim ultimately pressed at trial in respect of the costs of hospitalisation at Sir Charles Gairdner Hospital. The invoices in respect of that treatment were not presented by the appellant to the respondents until 24 July 2001, the day before the trial was due to commence. We note that the great bulk of those costs claimed by the appellant comprised the special damages of $13,936 which are awarded by the judgment of this Court.
9 When those costs were disclosed, the respondents did not, informally or otherwise, seek to amend their offer of settlement. Had they accepted this claim, that would no doubt have justified an increase from their informal offer of $75,000 to very close to the $90,000 which they had offered in March. Instead, the respondents opposed this claim on the ground that both in respect of the costs incurred at Royal Perth Hospital and Sir Charles Gairdner Hospital the appellant had not, in truth, suffered the loss because any claim made by the hospitals against the appellant could be resisted on the ground that the limitation period had expired. This Court found that proposition, which appealed to the trial Judge, to be without merit.
(Page 5)
10 In those circumstances, it seems to us that it is not clear that even if there had been earlier disclosure of the special damages in question, albeit outside the limitation period, the respondents would so have adjusted their offer of settlement as to result in an amount in the region of or greater than that which, following the appeal, the appellant has recovered. It seems to us therefore that upon that ground the costs of the trial and the appeal should not be awarded to the respondents and the appellant should not be deprived of his costs.
11 The respondents make a further submission that if that be our view, at least in respect of the appeal the conduct of the appellant's counsel and solicitors was such that he should be deprived of no less than half of his taxed costs. It is pointed out that the grounds of appeal were in a number of respects subject to criticism by the Court and it is submitted that some were abandoned and the appellant achieved only limited success in relation to the remaining grounds.
12 It is true that there were 15 grounds, which had been settled by the counsel who argued the appeal (not Ms Marche). They did raise something of an ambit claim and little attempt had been made to concentrate on matters which had merit. To that extent the Court was not assisted to define the issues sought to be raised by the appellant in respect of the trial Judge's assessment of damages. However, the argument of the appeal was not, in our view, unduly lengthened by attempts to support untenable grounds. Indeed, our criticism of ground 15, which alleged perceived bias on the part of the trial Judge, was that it was made and not abandoned without any attempt to support it by argument. In all the circumstances, it seems to us that the appellant should not be penalised by being deprived of a portion of his taxed costs.
13 In our view, the respondents should pay the costs of the appeal and of the trial to be taxed.
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