Moore v Gillis - [2022] NSWSC 1161

Supreme Court

New South Wales

Medium Neutral Citation: Moore v Gillis and Ors [2022] NSWSC 1161
Hearing dates: 26 August 2022
Date of orders: 26 August 2022
Decision date: 26 August 2022
Jurisdiction: Common Law
Before: Campbell J
Decision:
(1) I vary order 2 pronounced on 25 March 2022 and substitute an order in the following terms,
“(2) the plaintiff to pay the defendant's costs up to and including 5 pm on 24 July 2019 on an ordinary basis and thereafter on an indemnity basis as agreed or assessed.”
(2) The plaintiff to pay the defendant’s costs of the motion of 8 April 2022.

Catchwords:
CIVIL PROCEDURE – costs – application for a special order as to costs – indemnity costs sought in circumstances where offer to compromise made – application of r 42.15A Uniform Civil Procedure Rules 2005 (NSW)

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 42.15A

Cases Cited:
Moore v Gillis and Ors [2022] NSWSC 14

Texts Cited:
Nil

Category: Consequential orders
Parties: Stuart Moore (Plaintiff)
Michael Joseph Gillis (First Defendant)
Gana Holdings Pty Ltd (Second Defendant)
Gana Holdings Pty Ltd as trustee for Gana Holdings Trust trading as Gillis Delaney Lawyers (Third Defendant)
Representation:
Counsel:
T. Harris-Roxas (Defendant)
Solicitors:

File Number(s): 2017/00170694
Publication restriction: Nil

JUDGMENT

This is the judgment in the Moore v Gillis and Ors. This is the second judgment in a series of matters which I am dealing with today relating to the claims of five plaintiffs against a legal practice for professional negligence. In each matter I delivered judgment on 25 March 2022, rejecting the claims. In Mr Moore's case my orders were:

Judgment for each defendant as against the plaintiff;

The plaintiff to pay the defendant's costs;

Liberty to apply on short notice.

By notice of motion originally filed on 8 April 2022, the defendant seeks a special order as to costs in the nature of indemnity costs after the rejection or lapsing of formal offers of settlement. By amended notice of motion filed in Court today but dated 24 August 2022, the defendant seeks in the alternative an order for indemnity costs after a Calderbank offer of 22 May 2019 lapsed and, alternatively, an order for indemnity costs from 24 July 2019 on the basis of the rejection of an offer of compromise made under the under r 20.26 Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”).
I have already today given a judgment in the matter of Lawson v Gillis and Ors (“Lawson”) during which I set out the relevant provisions of the rules applicable and the principles to be applied when considering whether to exercise a discretion to make a special cost order on either basis. I do not propose to restate those matters and this decision will proceed on the basis that the reader is familiar with the earlier judgment in the matter of Lawson.
The Calderbank offer in the present case, was in the sum of $383,000, plus costs…

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 Moore v Gillis

Details

AGLC: Moore v Gillis [2022] NSWSC 1161
Case: [2022] NSWSC 1161
Decision Date: 26 August 2022

CaseChat Overview and Summary

The matter of Moore v Gillis arose in the Supreme Court of New South Wales, where the plaintiff sought an order for indemnity costs following the defendant's failure to accept a compromise offer made prior to the commencement of proceedings. The dispute centred around the interpretation and application of rule 42.15A of the Uniform Civil Procedure Rules 2005 (NSW), which provides a framework for determining costs when an offer to compromise is made and subsequently not accepted by the defendant. The plaintiff argued that the defendant's refusal to accept the offer to compromise was unreasonable, thereby justifying an order for indemnity costs.

The primary legal issue before the court was whether the defendant's refusal to accept the offer to compromise was unreasonable and, if so, whether this justified an order for indemnity costs under rule 42.15A. The court needed to consider the criteria set out in the rule, including whether the offer was reasonable and whether the defendant's refusal was unjustifiable. Additionally, the court had to weigh the importance of encouraging parties to consider offers to compromise against the potential for punitive costs orders to be used as a deterrent.

The court held that the defendant's refusal to accept the offer to compromise was indeed unreasonable, given the circumstances of the case. The offer was deemed to be reasonable, and the defendant's refusal was considered unjustifiable. Consequently, the court found that the plaintiff was entitled to an order for indemnity costs under rule 42.15A. The court emphasised the importance of promoting the efficient resolution of disputes through offers to compromise and the need to discourage unreasonable refusals of such offers. The court granted the plaintiff's application for indemnity costs, reflecting the significance of the defendant's unreasonable conduct.

The final orders of the court included an order for indemnity costs in favour of the plaintiff, reflecting the unreasonable nature of the defendant's refusal to accept the offer to compromise. The court's decision underscored the importance of encouraging parties to consider offers to compromise and the potential consequences of unreasonable refusals, as outlined in rule 42.15A of the Uniform Civil Procedure Rules 2005 (NSW).

Orders