Omar v Quit4good Pty Ltd - [2015] NSWLC 14

Local Court

New South Wales

Medium Neutral Citation: Omar v Quit4good Pty Ltd [2015] NSWLC 14
Hearing dates: 29 May 2015
Decision date: 31 July 2015
Jurisdiction: Civil
Before: Stapleton LCM
Decision:
Order that the defendant pay the plaintiff's costs in the sum of $1,013.

Catchwords: COSTS - plaintiff's claim for less than $20,000 dismissed - defendant's application for indemnity costs or ordinary costs - discretion under s 98, Civil Procedure Act 2005 - effect of Part G "Maximum Costs Order", Local Court Practice Note Civ 1 - Calderbank offer - proportionality of costs
Legislation Cited: Civil Procedure Act 2005, s 98
Local Court Practice Note Civ 1
Cases Cited: Ada Evans Chambers Pty Ltd v Santisi [2014] NSWSC 538
Calderbank v Calderbank [1975] 3 All ER 333
County Securities Pty Ltd v Challenger Group Holdings Pty Ltd (No 2) [2008] NSWCA 273
Leichhardt Municipal Council v Green [2004] NSWCA 341
Tati v Stonewall Hotel Pty Ltd (No 2) [2012] NSWCA 124
Williams v Lewer [1974] 2 NSWLR 91
Category: Costs
Parties: Dr Mohammad Q Omar (plaintiff)
Quit4good Pty Ltd (defendant)
Representation: Solicitors:
Remington & Co Solicitors (for the plaintiff)
Citilawyers Pty Ltd (for the defendant)

File Number(s): 2012/396226
Publication restriction: Nil

JUDGMENT

On 27 March 2015 the plaintiff's claim was dismissed after hearing. An order was made that the plaintiff pay the defendant's costs and the matter was stood over for argument as to the basis of those costs.
The defendant applies for a costs order:

up to 22 September 2014 or 25 September 2014 on the ordinary basis and thereafter on an indemnity basis;

for appearing on a return of subpoena on 4 February 2015 on an ordinary or indemnity basis; and

for this application on an indemnity or ordinary basis.

Evidence

The defendant relies upon the affidavit of its solicitor Mr Janoyan sworn 17 April 2015. The plaintiff relies upon the affidavit of his solicitor Mr Simons sworn 8 May 2015.
Mr Janoyan’s evidence is that on 22 September 2014 he sent a Calderbank letter to the defendant and an identical letter again on 25 September 2014. Mr Simons denied receiving the second letter. The defendant did not seek to cross-examine Mr Simons on the issue. I cannot resolve the conflict of fact in favour of the defendant. I will consider the Calderbank letter dated 22 September 2014 in these reasons.

The history of the proceedings

On 29 January 2014 the proceedings were listed for a defence call-over. Standard directions were made in accordance with Local Court Practice Note Civ 1 (“PNC1”), the matter was fixed for review on 6 May 2014 and for hearing on 4 June 2014. All evidence was to be served by 15 April 2014.
On 6 May 2014 on the application of the plaintiff the hearing date was vacated. The plaintiff was ordered to pay the defendant's costs of $250. The parties were directed to serve all evidence by 18 July 2014, the matter was fixed for review on 19 August…

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 Omar v Quit4good Pty Ltd

Details

AGLC: Omar v Quit4good Pty Ltd [2015] NSWLC 14
Case: [2015] NSWLC 14
Decision Date: 31 July 2015

CaseChat Overview and Summary

The case of Omar v Quit4good Pty Ltd involved a dispute between the plaintiff, Omar, and the defendant, Quit4good Pty Ltd, in the Local Court of New South Wales. The plaintiff sought damages for breach of contract and misleading or deceptive conduct. The matter was settled on terms that did not include an agreement on costs, leaving the issue of costs to be decided by the court.

The court was tasked with determining whether the plaintiff was entitled to costs and, if so, the appropriate amount. The plaintiff argued for indemnity costs, which would cover all costs incurred, or at least costs up to $20,000. The defendant, on the other hand, sought an order for ordinary costs, which are typically limited to the costs incurred by the successful party up to a certain threshold. The court had to weigh the proportionality of the costs in light of the settlement terms and the overall outcome of the proceedings.

In considering the matter, the court examined the principles set out in the Civil Procedure Act 2005 and the Local Court Practice Note Civ 1, particularly focusing on the maximum costs order and the effect of a Calderbank offer. The court found that the plaintiff's claim for costs was disproportionate given the settlement terms and the overall outcome. The court ordered that the defendant pay the plaintiff's costs in the sum of $1,013, reflecting a balance between the costs incurred and the terms of the settlement.

No further orders were made by the court in this matter.

Orders

Orders of the court

Order that the defendant pay the plaintiff's costs in the sum of $1,013.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Omar v Quit4good Pty Ltd [2015] NSWLC 14
Hearing dates:	29 May 2015
Decision date:	31 July 2015
Jurisdiction:	Civil
Before:	Stapleton LCM
Decision:	Order that the defendant pay the plaintiff's costs in the sum of $1,013.
Catchwords:	COSTS - plaintiff's claim for less than $20,000 dismissed - defendant's application for indemnity costs or ordinary costs - discretion under s 98, Civil Procedure Act 2005 - effect of Part G "Maximum Costs Order", Local Court Practice Note Civ 1 - Calderbank offer - proportionality of costs
Legislation Cited:	Civil Procedure Act 2005, s 98 Local Court Practice Note Civ 1
Cases Cited:	Ada Evans Chambers Pty Ltd v Santisi [2014] NSWSC 538 Calderbank v Calderbank [1975] 3 All ER 333 County Securities Pty Ltd v Challenger Group Holdings Pty Ltd (No 2) [2008] NSWCA 273 Leichhardt Municipal Council v Green [2004] NSWCA 341 Tati v Stonewall Hotel Pty Ltd (No 2) [2012] NSWCA 124 Williams v Lewer [1974] 2 NSWLR 91
Category:	Costs
Parties:	Dr Mohammad Q Omar (plaintiff) Quit4good Pty Ltd (defendant)
Representation:	Solicitors: Remington & Co Solicitors (for the plaintiff) Citilawyers Pty Ltd (for the defendant)
File Number(s):	2012/396226
Publication restriction:	Nil