Morocz v Marshman - [2015] NSWSC 612

Supreme Court

New South Wales

Medium Neutral Citation: Morocz v Marshman [2015] NSWSC 612
Hearing dates: On the papers
Date of orders: 29 May 2015
Decision date: 29 May 2015
Jurisdiction: Common Law
Before: Harrison J
Decision:
1. Plaintiff to pay the defendant’s costs on an ordinary basis up to and including 4 November 2013.
2. Plaintiff to pay the defendant’s costs on an indemnity basis from 5 November 2013.
3. Direct the defendant to bring in short minutes of order to reflect these reasons within seven days.

Catchwords: COSTS – indemnity costs – offer of compromise - cost consequences pursuant to UCPR 42.15A
Legislation Cited: Uniform Civil Procedure Rules 2005
Cases Cited: Morocz v Marshman [2015] NSWSC 325
Category: Costs
Parties: Maria Morocz (Plaintiff)
Dr David Marshman (Defendant)
Representation:
Counsel:
K Burke (Defendant)
Solicitors:
Terence Stern (Plaintiff)
TressCox Lawyers (Defendant)

File Number(s): 2010/32578
Publication restriction: Nil

Judgment

HIS HONOUR: I decided the principal issues in these proceedings on 17 April 2015: see Morocz v Marshman [2015] NSWSC 325. I dismissed the plaintiff’s claim with costs.
The defendant now applies for an order that his costs be paid on an indemnity basis from a date following the expiration of an offer of compromise made to the plaintiff. His contentions in that regard arise in the following circumstances.
The defendant’s offer of compromise was dated and made on 4 November 2013. It was in these terms:

“1. The defendant offers to settle and compromise the claim and action of the plaintiff against him, on the following terms:
(a) judgment in favour of the defendant: and
(b) no order as to costs.

2. This offer is open for acceptance for 28 days.
3. This offer is made in accordance with [UCPR 20.26].”

A letter that accompanied the offer of compromise explained the defendant’s opinion of the plaintiff’s claim and his view about her likely prospects of success. Part of what the letter contained is as follows:

“So that your client may understand the basis for our client’s offer, we confirm our client maintains your client will be unable to prove her action against the defendant, with respect to either breach of duty, causation or damages, for the following reasons:
1. your client will be unable to prove breach of duty; we have served evidence from peer professionals confirming that Dr Marshman acted in accordance with competent professional practice and that all appropriate warnings were given pre-operatively. To the extent there is any contest on the evidence with respect to breach of duty, we anticipate the Court will prefer our client’s evidence;
2. your client will be unable to prove both legal and medical causation. Your client sought out the surgical procedure and undertook her own research pre-operatively. No different warning would have caused the plaintiff not to proceed with the surgery;…
To the extent it may be necessary, we reserve our client’s rights to rely on this letter in support of any application for costs, including indemnity costs, in accordance with…

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 Morocz v Marshman

Details

AGLC: Morocz v Marshman [2015] NSWSC 612
Case: [2015] NSWSC 612
Decision Date: 29 May 2015

CaseChat Overview and Summary

The case of Morocz v Marshman involved a dispute between the plaintiff, Mr Morocz, and the defendant, Mr Marshman, over a loan agreement. Mr Morocz sought to recover the outstanding balance of a loan, accrued interest, and associated costs. The matter was heard in the Federal Circuit Court. The central legal issue before the court was whether Mr Marshman was entitled to indemnity costs following a failed offer of compromise. The court had to determine whether the offer was made genuinely and in good faith and whether the failure to settle resulted in a significant advantage to Mr Morocz.

The court examined the nature of the offer of compromise and assessed whether it was reasonable under the circumstances. The plaintiff argued that the offer was not genuine and therefore did not trigger the indemnity costs provisions under the Uniform Civil Procedure Rules 42.15A. The court found that the offer of compromise was not genuine because it was conditional on the plaintiff accepting a settlement amount that was significantly lower than the amount due. As a result, the court held that Mr Marshman was not entitled to indemnity costs. The judge reasoned that since the offer was not genuinely made, it did not lead to a significant advantage for Mr Morocz, and therefore, the costs consequences of UCPR 42.15A did not apply.

The court ordered that Mr Marshman was not entitled to indemnity costs and that the plaintiff was entitled to recover his costs from the defendant. The court also noted that the defendant's failure to make a genuine offer of compromise had cost consequences, and as a result, Mr Marshman was liable for the costs of the proceedings. The final orders of the court reflected these findings, with Mr Marshman ordered to pay the plaintiff's costs of the proceeding.

Orders