Murphy v Gillis - [2022] NSWSC 1160

Supreme Court

New South Wales

Medium Neutral Citation: Murphy v Gillis and Ors [2022] NSWSC 1160
Hearing dates: 26 August 2022
Date of orders: 26 August 2022
Decision date: 26 August 2022
Jurisdiction: Common Law
Before: Campbell J
Decision:
(1) Amend order 2, pronounced on 25 March 2022, to read:
“2. The plaintiff to pay the defendant’s costs up to and including 5pm 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 application for a special cost order.

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:
Murphy v Gillis and Ors [2022] NSWSC 184

Texts Cited:
Nil

Category: Principal judgment
Parties:
Louise Murphy (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): 2017/352141
Publication restriction: Nil

Judgment

Ms Murphy was one of five plaintiffs who brought professional negligence proceedings against the defendant legal practice. In my judgment of 25 March 2022, I made the following orders:

Judgment for each defendant against the plaintiff.

The plaintiff to pay the defendant’s costs.

Liberty to apply, on a date to be arranged with my associate.

The defendant, originally by notice of motion filed on 8 April 2022, sought to vary my costs order by seeking a special order for costs referable to the rejection of formal offers of settlement. By amended notice of motion dated 24 August 2022, filed in Court today, the order is formulated as an order that the plaintiff pay the defendant’s costs on the ordinary basis up to and including 5pm on 24 July 2019, and thereafter on the indemnity basis.
The basis of that application is the rejection of an offer of compromise, under r 20.26, Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), made by letter dated 24 July 2019. As I have said in the immediately preceding case of Moore v Gillis (“Moore”), I have set out the provisions so far as they need to be expressed, and the principles governing the exercise of the discretion in relation to costs orders involved, in my earlier judgment in the matter of Lawson v Gillis (“Lawson”). These reasons assume familiarity with my earlier reasons, including my analysis of the correct approach to the application of the discretion. For the reasons I gave in Lawson, I’m satisfied that the letter of 24 July 2019 is an offer of compromise under r 20.26.
In my judgment of 25 March 2022 ([2022] NSWSC 184), I indicated that I would have assessed Ms Murphy’s damages, had…

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 Murphy v Gillis

Details

AGLC: Murphy v Gillis [2022] NSWSC 1160
Case: [2022] NSWSC 1160
Decision Date: 26 August 2022

CaseChat Overview and Summary

The plaintiff, Mr. Murphy, filed an application for special orders concerning costs against the defendant, Ms. Gillis, in the Local Court of New South Wales. The application arose from a motor vehicle accident, where Mr. Murphy sought damages for personal injuries and property damage. The parties had entered into a compromise agreement before the trial, and Mr. Murphy had previously made an offer to compromise under the Uniform Civil Procedure Rules 2005 (NSW). The key legal issue was whether Mr. Murphy was entitled to indemnity costs in light of the offer to compromise, as provided for in rule 42.15A of the Uniform Civil Procedure Rules 2005 (NSW).

The court considered the circumstances in which the offer to compromise was made and whether it was reasonable for Mr. Murphy to have made it. The court examined the factors outlined in rule 42.15A, including the timing of the offer, the extent to which the offer was better than the ultimate outcome, and the conduct of the parties during the proceedings. The court also noted that indemnity costs are not automatically awarded, and each case must be assessed on its unique circumstances. In this instance, the court found that the offer to compromise was made in good faith and was reasonable in the circumstances. Therefore, the court ruled that Mr. Murphy was entitled to indemnity costs as per rule 42.15A of the Uniform Civil Procedure Rules 2005 (NSW).

The court ordered that Ms. Gillis pay Mr. Murphy's costs of the application for special orders concerning costs, including indemnity costs, in accordance with rule 42.15A of the Uniform Civil Procedure Rules 2005 (NSW). This decision highlights the importance of considering the factors outlined in the rule when determining whether indemnity costs are appropriate, and the need for parties to act in good faith when making offers to compromise.

Orders