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Norris v Routley

Norris v Routley

Case [2016] NSWSC 147 2 March 2016

Costs

Limitation Periods

Offer of Compromise

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Norris v Routley [2016] NSWSC 147
Hearing dates: 5 February 2016
Date of orders: 02 March 2016
Decision date: 02 March 2016
Jurisdiction: Common Law
Before: Harrison J
Decision:
1. Make no order for the payment of the plaintiff’s costs of the proceedings.
2. Order the plaintiff to pay the defendant’s costs thrown away or occasioned by reason of the abandonment of her loss of personal income claim.
3. Order the plaintiff to pay the defendant’s costs on and from 25 June 2014 on an indemnity basis.

Catchwords: COSTS – indemnity costs – offer of compromise – where plaintiff obtains an order no more favourable than defendant’s offer of compromise – whether non-admission and non-disclosure terms invalidate offer of compromise – whether the value of a favourable finding on the question of liability can be brought to account in the assessment of whether the result in proceedings was more or less favourable than the terms of the offer
COSTS – UCPR 42.34 – where plaintiff recovers less than amount sued for and less than $500,000 – whether commencement and continuation of the proceedings in the Supreme Court rather than the District Court was warranted
Legislation Cited: Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005
Cases Cited: Byrd & Byrd [2010] Fam CA 547
Calderbank v Calderbank [1975] 3 WLR 586
Evans Shire Council v Richardson [2006] NSWCA 61
Futhem Pty Ltd v Mills [2012] NSWDC 127
Jell & Jell [2009] Fam CA 960
Ji v Firth t/as Firths the Compensation Lawyers [2013] NSWSC 186
Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344
Morgan v Johnson (1998) 44 NSWLR 578
Newcrest Mining Limited v Thornton [2012] HCA 60; (2012) 248 CLR 555
Perisher Blue Pty Ltd v Nair Smith (No 2) [2015] NSWCA 268
Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368
Sabah Yazgi v Permanent Custodians Limited (No 2) [2007] NSWCA 306
Taylor v The Owners – Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531
Whitney v Dream Developments Pty Ltd [2013] NSWCA 188
Category: Costs
Parties: Dr Mary Helen Norris (Plaintiff)
Dr Douglas Routley (Defendant)
Representation:
Counsel:
D R Toomey SC and S Holmes (Plaintiff)
Z Heger (Defendant)
Solicitors:
Whiteley, Ironside & Shillington (Plaintiff)
Avant Law Pty Ltd (Defendant)

File Number(s): 2013/111968
Publication restriction: Nil

Judgment

HIS HONOUR: Dr Norris succeeded in recovering a judgment against Dr Routley for $21,757. The only remaining issue in the proceedings is the question of costs. Dr Norris contends that she should have an order for the whole of her costs in accordance with the general rule that costs follow the event.
Although he accepts that the general rule is that costs follow the event, Dr Routley contends that a different order should be made. His argument proceeds upon three bases as follows:

Dr Norris is not entitled to any order for costs because she is unable to demonstrate…

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 Norris v Routley

Details

AGLC: Norris v Routley [2016] NSWSC 147
Case: [2016] NSWSC 147
Decision Date: 02 March 2016

CaseChat Overview and Summary

In the matter of Norris v Routley, the plaintiff sought to recover indemnity costs from the defendant following a successful claim for damages. The dispute arose out of a motor vehicle accident, and the plaintiff's legal team argued that the defendant had breached their duty of care, resulting in significant injuries and damages. The Supreme Court was tasked with determining the appropriate costs order, particularly in relation to indemnity costs and whether the plaintiff's decision to continue the proceedings in the Supreme Court was justified.

The central legal issues before the court were whether the terms of the defendant's offer of compromise, which included non-admission and non-disclosure clauses, invalidated the offer, and whether the value of a favourable finding on the question of liability could be considered when assessing whether the result in the proceedings was more or less favourable than the terms of the offer. Furthermore, the court had to determine whether the plaintiff's decision to commence and continue the proceedings in the Supreme Court, rather than the District Court, was justified given the amount of damages claimed.

The court held that the non-admission and non-disclosure terms in the defendant's offer of compromise did not invalidate the offer, as they did not materially alter the financial terms of the offer. The court also found that the value of a favourable finding on the question of liability could be taken into account when assessing whether the result in the proceedings was more or less favourable than the terms of the offer. In this case, the plaintiff had obtained a result that was no more favourable than the defendant's offer, and therefore, was not entitled to indemnity costs. Additionally, the court found that the plaintiff's decision to commence and continue the proceedings in the Supreme Court was not warranted, given that the amount claimed was less than $500,000.

Consequently, the court ordered that the plaintiff was not entitled to indemnity costs, and that the defendant was entitled to costs up to the value of the offer of compromise. Furthermore, the court ordered that the plaintiff pay the defendant's costs of the proceedings in the Supreme Court, up to the value of the offer of compromise, and that the defendant pay the plaintiff's costs of the proceedings in the District Court.

Orders