Neville v Lam (No 4) - [2014] NSWSC 1088

Supreme Court

New South Wales

Medium Neutral Citation: Neville v Lam (No 4) [2014] NSWSC 1088
Hearing dates: 12 August 2014
Decision date: 12 August 2014
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
(1) Order 2 made on 21 May 2014 be set aside.
(2) The plaintiff pay the defendant's costs of the proceedings on an ordinary basis up to and including 28 October 2013.
(3) The plaintiff pay the defendant's costs of the proceedings thereafter on an indemnity basis, such costs to include the costs of the defendant's motion filed 4 June 2014.
(4) The exhibits be returned.

Catchwords: COSTS - application for indemnity costs - whether valid offer of compromise - absence of statement that offer made in accordance with the Rules - whether offer genuine compromise - whether finding that rejection of offer was reasonable is a basis for otherwise ordering.
Legislation Cited: - Uniform Civil Procedure Rules 2005 (NSW), r 20.26, r 36.16, r 42.15A
Cases Cited: - Barakat v Bazdarova [2012] NSWCA 140
- Commissioner of Taxation v Moodie [2014] NSWCA 59
- Dean v Stockland Property Management Pty Limited (No 2) [2010] NSWCA 141
- Duncan-Strelec v Tate [2010] NSWSC 1256
- Jones v Trad (No 3) [2013] NSWCA 463
- Leichhardt Municipal Council v Green [2004] NSWCA 341
- McGlashan v QBE Insurance (Australia) Ltd (No 4) [2014] NSWSC 882
- Neville v Lam (No 3) [2014] NSWSC 607
- South Eastern Sydney Area Health Service v King [2006] NSWCA 2
- The Uniting Church v Takacs (No 2) [2008] NSWCA 172
Category: Costs
Parties: Lisa Neville (Plaintiff)
Associate Professor Alan Lam (Defendant)
Representation: Counsel:
A.J. Bartley SC (Plaintiff)
J.M. Sandford (Defendant)
Solicitors:
Ken Cush & Associates (Plaintiff)
Avant Law (Defendant)

File Number(s): 2008/289699
Publication restriction: Nil

ex tempore Judgment

On 21 May 2014 I published my principal judgment in these proceedings (Neville v Lam (No 3) [2014] NSWSC 607).

I dismissed the proceedings and ordered the plaintiff to pay the defendant's costs. I drew the parties' attention to Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), r 36.16(3A), which enables the Court to set aside an order that has been entered provided that a notice of motion to that effect is filed within fourteen days after it is so entered (Neville v Lam (No 3) at [224]).

Within the time contemplated by that rule the defendant filed a notice of motion seeking a variation of the order for costs, and substitution of an order that the plaintiff pay his costs on an indemnity basis from a certain date.

The basis of the defendant's application was two offers he made to settle proceedings, each of which he contends constitutes an "offer of compromise" under the UCPR.

The First Offer

The first offer relied upon was made on or about 7 February 2012. It was accompanied by a letter entitled "without prejudice other than as to costs". The letter stated that it enclosed an "offer of compromise", but did…

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 Neville v Lam (No 4)

Details

AGLC: Neville v Lam (No 4) [2014] NSWSC 1088
Case: [2014] NSWSC 1088
Decision Date: 12 August 2014

CaseChat Overview and Summary

The case of Neville v Lam (No 4) involved an application for indemnity costs made by the respondent, Lam, against the applicant, Neville. The dispute originated from a legal action concerning a property dispute. The matter was heard in the Supreme Court of New South Wales. Lam sought an order for indemnity costs against Neville based on an alleged valid offer of compromise that Neville had rejected.

The primary legal issue before the court was whether the offer of compromise made by Lam was valid and whether it complied with the relevant procedural requirements. Specifically, the court had to determine if Lam's offer was a genuine compromise, considering the absence of a statement indicating that it was made in accordance with the Uniform Civil Procedure Rules. Additionally, the court needed to assess whether the rejection of Lam's offer was reasonable, and if so, whether this could form a basis for ordering indemnity costs.

The court found that the offer of compromise made by Lam did not comply with the procedural requirements, as it lacked the necessary statement confirming compliance with the Rules. Despite this, the court held that the offer was a genuine compromise. Furthermore, the court determined that Lam's rejection of the offer was reasonable. Consequently, the court ordered that Neville pay Lam's costs of the application on an indemnity basis.

Orders