Morris v Leaney (No 2)

[2021] NSWDC 370

District Court

New South Wales

Medium Neutral Citation:

Morris v Leaney (No 2) [2021] NSWDC 370

Hearing dates:

Determined on the papers

Date of orders:

5 August 2021

Decision date:

05 August 2021

Jurisdiction:

Civil

Before:

J Smith SC, DCJ

Decision:

The plaintiffs are to pay the defendant’s costs on an ordinary basis up to and including 18 August 2020 and on an indemnity basis from 19 August 2020.

Catchwords:

COSTS – Offer of compromise – costs on an ordinary or indemnity basis

Legislation Cited:

Uniform Civil Procedure Rules 2005

Cases Cited:

Fan v Han (No 2) [2016] NSWSC 1651

Leda v Weerden (No 3) [2006] NSWSC 220

Management Services Australia Pty Ltd v PM Works Pty Ltd (No 2) [2018] NSWSC 336

South Eastern Sydney Area Health Service v King [2006] NSWCA 2

Category:

Costs

Parties:

Alan Morris – First Plaintiff
Tania Morris – Second Plaintiff
Dustin Leaney - Defendant

Representation:

Counsel:
Mr A Ahmad (Defendant)

Solicitors:
Gilberts Legal (Plaintiff)
Holman Webb Lawyers (Defendant)

File Number(s):

2018/187937

Publication restriction:

Nil

Judgment

1. These proceedings were heard in late August 2020 and in February 2021. Written submissions were filed after the hearing and I delivered judgment on 10 June 2021.

2. In brief, I concluded that the plaintiffs had not succeeded in proving any loss that flowed from the conduct of the defendant, but gave judgment in their favour for $1,000 as nominal damages for the defendant’s breach of contract.

3. In my reasons I expressed the provisional view, at [160], that the appropriate order in respect of costs was that the plaintiffs pay the defendant’s costs. However, as the parties had not been heard on that question, I refrained from making any costs order and gave directions to allow the parties to be heard on the matter.

4. Both parties filed submissions and were content for orders to be made without any further oral hearing. The defendant submitted that the plaintiffs should pay his costs on an ordinary basis, up to and including 18 August 2020 and on an indemnity basis from 19 August 2020. The plaintiffs submitted that the defendant should be ordered to pay their costs. The plaintiffs’ submissions are inconsistent with the authorities concerning costs in judgments for nominal sums and do not grapple with that inconsistency.

5. In my view, the authorities referred to in my principal judgment support an order for costs in favour of the defendant. Further, for the reasons I set out below, those costs should be on an indemnity basis from 19 August 2020.

6. On 18 August 2020 the defendant served a notice of compromise in accordance with UCPR r 20.26 in terms that there be judgment for the plaintiffs for $50,000. The offer was open for acceptance until 4:00pm on 21 August 2020.

7. Rule 20.26 provides as follows:

20.26   Making of offer

(1)     In any proceedings, any party may, by notice in writing, make an offer to any other party to compromise any claim in the proceedings, either in whole or in part, on specified…