Pacanowski v Simon Wakerman and Associates (No 2)

NEW SOUTH WALES COURT OF APPEAL

CITATION:
PACANOWSKI v SIMON WAKERMAN & ASSOCIATES (NO 2) [2010] NSWCA 40
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
40255/09

HEARING DATE(S):
On the papers

JUDGMENT DATE:
17 March 2010

PARTIES:
David Pacanowski – First Applicant
Maxine Pacanowski – Second Applicant
Simon Wakerman & Associates Pty Ltd – First Respondent
Simon Wakerman – Second Respondent
Angelo Natoli – Third Respondent
Natoli Constructions Pty Ltd – Fourth Respondent

JUDGMENT OF:
Tobias JA Basten JA    

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 3015/05

LOWER COURT JUDICIAL OFFICER:
Registrar McDonald

LOWER COURT DATE OF DECISION:
16 April 2009

COUNSEL:
S D Robb QC – Applicants
S Torrington – First and Second Respondents
B Dooley SC/I Judd – Third and Fourth Respondents

SOLICITORS:
Charles G Roth – Applicants
Blackstone Waterhouse – First and Second Respondents
George Mallos, Lawyer – Third and Fourth Respondents

CATCHWORDS:
PROCEDURE – costs – indemnity costs – two separate offers of settlement – whether constituted a compromise – whether rejection of offer reasonable – whether award for indemnity costs justified – Uniform Civil Procedure Rules 2005 (NSW), Pt 20, Div 4

LEGISLATION CITED:
Uniform Civil Procedure Rules 2005 (NSW), r 20.26Pt 20, Div 4

CATEGORY:
Procedural and other rulings

CASES CITED:
[<i>Calderbank v Calderbank</i>] [1975] 3 WLR 586
[<i>Pacanowski v Simon Wakerman & Associates</i>] [2009] NSWCA 402

TEXTS CITED:

DECISION:
(1)  Dismiss the application to vary the orders made on 10 November 2009.
(2)  There is no order as to the costs of this application.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40255/09

TOBIAS JA
BASTEN JA

17 March 2010

David PACANOWSKI v SIMON WAKERMAN & ASSOCIATES (NO 2)

Judgment

1. THE COURT:  The applicants were plaintiffs in proceedings brought against the respondents (then defendants) in the District Court.  The proceedings were dismissed for want of prosecution.  The applicants sought leave to appeal from the order of dismissal.

2. On 10 November 2009 the Court dismissed the summons for leave to appeal, with costs: Pacanowski v Simon Wakerman & Associates [2009] NSWCA 402. The respondents now seek an order for costs assessed on an indemnity basis. They put forward three justifications for such an order. The first involved an offer of compromise dated 12 August 2009, filed in this Court. The second was a letter of the same date (12 August 2009) containing an offer of settlement, with an explanation of the basis on which the offer was made, and a statement that it would be relied upon to support an application for indemnity costs in the event that the appeal was dismissed, pursuant to Calderbank v Calderbank [1975] 3 WLR 586. The offer remained open until 14 September 2009. The third was said to be “the fact that the plaintiffs’ conduct of the proceedings has caused unreasonable delay and expense, including the seeking of leave to appeal from the judgment…