Nicolaou v Agostino

[2021] NSWDC 811

District Court

New South Wales

Medium Neutral Citation:

Nicolaou v Agostino [2021] NSWDC 811

Hearing dates:

22 October 2021

Date of orders:

22 October 2021

Decision date:

22 October 2021

Jurisdiction:

Civil

Before:

P Taylor SC DCJ

Decision:

(1)   Note that the defendants press for judgment but that order is not granted.

(2)   In that event, by consent, the Court dismisses the proceedings on terms that no further proceedings be commenced by the plaintiffs against the defendants in respect of the subject matter of the proceedings.

(3)   By consent, the plaintiffs pay the defendants’ costs of the proceedings.

(4)   Those costs payable by the plaintiffs are to be assessed on an indemnity basis from 9 November 2020 to date (not by consent).

Catchwords:

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Want of due despatch

COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers

Texts Cited:

Ritchie’s Uniform Civil Procedure NSW

Category:

Procedural rulings

Parties:

Andreas Nicolaou (first plaintiff)
Kyriaki Nicolaou (second plaintiff)
Elvina Agostino (first defendant)
Joe Agostino (second defendant)

Representation:

Counsel:
Mr L Katsinas (plaintiffs)
Mr T J Dixon with Mr H Pararajasingham (defendants)

Solicitors:
Shanahans Butlers Solicitors (plaintiffs)
Taylor & Associates (defendants)

File Number(s):

2020/00223957

Publication restriction:

None

Judgment

1. The plaintiffs consent to the proceedings being dismissed and the plaintiffs paying the defendants’ costs. What is in issue is that the defendants seek in the first instance an order for judgment, which is resisted by the plaintiffs, and secondly, the defendants seek a special order for costs, which is also resisted by the plaintiffs.

2. As to the first of those, whether the defendants should get an order for judgment in their favour, ordinarily a defendant may get a judgment by reason of some default. The Rules contemplate that a dismissal for want of prosecution does not operate as a bar to the commencement of further proceedings: [12.7.40] of Ritchie’s Uniform Civil Procedure NSW states, "The dismissal of an action for want of prosecution is no bar to the commencement of further proceedings".

3. In this case, the plaintiffs have stated repeatedly that they do not seek to take any further proceedings. Yet a default by the plaintiffs or an entitlement of the defendants to default judgment has not been established.

4. Secondly, and perhaps more importantly, there has been no determination on the merits of the matter. It is apparent from the plaintiffs’ affidavit and submissions that whilst they consent to the proceedings being dismissed and not being re-agitated in the future, some factual aspects remain in dispute.

5. In these circumstances, where the Court is not determining the matter on the merits, in the absence of consent it seems inappropriate that an order for judgment should be given. Rather, the proceedings should be dismissed.

6. In any event, after further discussion, the parties agree that, by consent, the Court should dismiss the plaintiffs’ proceedings on terms that there be no further proceeding commenced by the plaintiffs against the defendants in respect of the subject matter of the proceedings.

7. That leaves the question of costs.

8. Mr Dixon for the defendants raised three matters as reasons why some or all of the costs should be paid on an indemnity basis.

9. First, there was a Calderbank offer made on 9 November 2020, which effectively offered that the parties walk away with no order as to costs. In fact, the defendants proposed to make payment of a nominal sum of $10. In the circumstances, where the proceedings are being dismissed, and where the plaintiffs have agreed to a costs order against them, the defendants assert that they have done better than the offer and that the plaintiffs, acting reasonably, should have accepted the offer.

10. The second matter is that the defendants assert that the plaintiffs were dilatory in complying with court orders for the service of evidence. The evidence reveals that orders were made for the service of the plaintiffs’ evidence on 9 and on 29 April 2021, with which the plaintiffs did not comply. Since the motion has been served, an affidavit of the plaintiffs, giving some detail about the intended claim, has been filed. This is a matter I should take into account in respect of costs, although in and of itself it does not warrant a special order because the plaintiffs notified the defendants about the proposed discontinuance shortly after the date when the affidavits were to be served.

11. The third matter that is relied upon by the defendants was said to be the unreasonable conduct of the plaintiffs in keeping the proceedings on foot rather than filing a notice of discontinuance. However, it seems to me that it was not unreasonable for the plaintiffs to see whether the question of costs could be agreed in an effort to have the discontinuance dealt with by consent. I do not see the conduct of the plaintiffs in or since July 2021 as being so unreasonable as to warrant a special costs order.

12. In relation to the Calderbank offer, it cannot be disputed that the offer proposed a resolution of the proceedings more favourable than what has been achieved. The plaintiffs said that the offer was early in the proceedings on 9 November 2020. However, both the offer itself and the earlier filing of a detailed defence on 24 September 2020 alerted the plaintiffs to the circumstance establishing that their case was without foundation: the defendants did not sign or enter into any contract, they had not retained a solicitor to say otherwise, and they had received no money whatsoever from the plaintiffs.

13. In those circumstances, it seems to me that the plaintiffs were alerted to a significant issue with their claim that warranted investigation. In the period after the filing of the defence on 24 September, or the period immediately after the service of the Calderbank letter six weeks later, the evidence does not suggest the plaintiffs took any steps to ascertain whether there was substance in their claim against the defendants.

14. I am not satisfied that it was reasonable of the plaintiffs to reject the offer of the defendants. Although the plaintiffs did subsequently view some bank records, they had no materially greater knowledge now than after they received the Calderbank offer, and they have now recognised their need to discontinue the proceedings and pay the defendants’ costs.

15. I am persuaded that it was unreasonable for the plaintiffs to postpone doing in November 2021 what they have now done, namely, to withdraw their claim permanently.

16. Accordingly, the defendants are entitled to an order in the form of order 4 sought in the notice motion, namely, in addition to the order by consent that the plaintiffs pay the defendants’ costs, there should be an additional order, not by consent, that those costs are to be assessed on an indemnity basis after 9 November 2020 to date.

17. The orders of the Court are:

1. Note that the defendants press for judgment but that order is not granted.

2. In that event, by consent, the Court dismisses the proceedings on terms that no further proceedings be commenced by the plaintiffs against the defendants in respect of the subject matter of the proceedings.

3. By consent, the plaintiffs pay the defendants’ costs of the proceedings.

4. Those costs payable by the plaintiffs are to be assessed on an indemnity basis from 9 November 2020 to date (not by consent).

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Decision last updated: 29 July 2022