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Orcher v Bowcliff Pty Ltd

Orcher v Bowcliff Pty Ltd

Case [2012] NSWSC 1429 23 November 2012

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Supreme Court

New South Wales

Medium Neutral Citation: Orcher v Bowcliff Pty Ltd [2012] NSWSC 1429
Hearing dates: 2 November 2012
Decision date: 23 November 2012
Before: Harrison J
Decision:
1. Order the first defendant to pay the plaintiff's costs on the ordinary basis up to and including 7 September 2010 and thereafter on an indemnity basis.
2. Order the third defendant to pay the plaintiff's costs on the ordinary basis up to and including 17 December 2010 and thereafter on an indemnity basis.
3. Stay execution of the judgment against the first and third defendants until further order upon their undertaking to prosecute any appeals to the Court of Appeal that they may be advised to commence with all due despatch.

Catchwords:
PROCEDURE - costs - departing from the general rule - plaintiff seeking order for costs on indemnity basis from first and third defendants - UCPR 20.26 - whether offers of compromise valid under rule - whether conduct of plaintiff throughout litigation disentitling - award of costs on indemnity basis
PROCEDURE - judgment and orders - application by first and third defendants for stay of judgment pending appeal - stay opposed - where affidavit sworn by officer of the Court attesting to indemnification of first and third defendants - stay granted
Legislation Cited: Uniform Civil Procedure Rules 2005
Cases Cited: Collins v Sydney Ports Corporation [2012] NSWSC 1316
Old v McInnes and Hodgkinson [2011] NSWCA 410
Orcher v Bowcliff Pty Ltd [2012] NSWSC 1088
Pritchard v Trius Constructions Pty Ltd (No 2) [2011] NSWSC 1114
Vieira v O'Shea (No 2) [2012] NSWCA 121
Woolworths Ltd v Strong (No 2) (2011) 80 NSWLR 445; [2011] NSWCA 72
Category: Consequential orders
Parties: John James Orcher (Plaintiff)
Bowcliff Pty Ltd (t/as The Bridge Hotel Rozelle) (First Defendant)
Tamiano Paseka (Second Defendant)
Richard Francis Keough (Third Defendant)
QBE Insurance (Australia) Limited (Fourth Defendant)
Representation: Counsel:
J E Sexton SC with C P Heazlewood (Plaintiff)
R S Sheldon SC (First and Third Defendants)
M T McCulloch SC (Fourth Defendant)
Solicitors:
Carneys Lawyers (Plaintiff)
Wotton + Kearney (First and Third Defendants)
HWL Ebsworth (Fourth Defendant)

File Number(s): 2006/296392

Judgment

HIS HONOUR: Two issues remain for consideration following publication of my reasons for judgment in this matter on 12 September 2012: see Orcher v Bowcliff Pty Ltd [2012] NSWSC 1088. First, Mr Orcher seeks costs from Bowcliff and Mr Keough on an indemnity basis. That application is opposed. Secondly, Bowcliff and Mr Keough seek a stay of my orders pending disposition of their foreshadowed appeals to the Court of Appeal. That application is also opposed. (An earlier application by QBE for a similar stay on terms was dealt with by consent). This judgment deals with the two remaining matters.

Indemnity costs

By letter dated 7 September 2010, Mr Orcher's solicitors served an Offer of Compromise upon solicitors then acting for Bowcliff in the following relevant terms:

"The plaintiff offers to compromise this claim on the following terms:

1.Judgment for the plaintiff against…

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 Orcher v Bowcliff Pty Ltd

Details

AGLC: Orcher v Bowcliff Pty Ltd [2012] NSWSC 1429
Case: [2012] NSWSC 1429
Decision Date: 23 November 2012

CaseChat Overview and Summary

In Orcher v Bowcliff Pty Ltd, the plaintiff sought an order for costs on an indemnity basis from the first and third defendants. The dispute centred around whether the offers of compromise made by the plaintiff were valid under UCPR 20.26, and whether the conduct of the plaintiff throughout the litigation disqualified them from receiving costs on an indemnity basis. The case was heard in the Supreme Court of New South Wales. The first and third defendants subsequently applied for a stay of judgment pending an appeal against the order for indemnity costs. The plaintiff opposed this stay, and the court considered the affidavit sworn by an officer of the Court, which attested to the indemnification of the first and third defendants. The court granted the stay, pending the outcome of the appeal.

The court had to determine if the plaintiff's offers of compromise were valid under UCPR 20.26 and whether the plaintiff's conduct during the litigation warranted a departure from the general rule of awarding costs on an indemnity basis. The court also had to consider the affidavit sworn by an officer of the Court, which attested to the indemnification of the first and third defendants, and decide whether this was sufficient grounds to grant a stay of judgment pending the appeal. In its decision, the court found that the plaintiff's offers of compromise were indeed valid under UCPR 20.26 and that the plaintiff's conduct did not disentitle them to an award of costs on an indemnity basis. However, considering the affidavit sworn by an officer of the Court, which attested to the indemnification of the first and third defendants, the court granted the stay of judgment pending the outcome of the appeal.

The court's reasoning was based on the legal principles outlined in UCPR 20.26, which governs offers of compromise and the award of costs on an indemnity basis. The court held that the plaintiff's offers of compromise were valid and that their conduct throughout the litigation did not disqualify them from receiving costs on an indemnity basis. However, the court also recognised the importance of the affidavit sworn by an officer of the Court, which attested to the indemnification of the first and third defendants. The court found that this was sufficient grounds to grant a stay of judgment pending the outcome of the appeal. The final orders of the court were to grant the stay of judgment pending the outcome of the appeal by the first and third defendants.

Orders