Pawlowska v Zajglic (Costs)

[2010] NSWSC 1276

CITATION:	Pawlowska v Zajglic (Costs) [2010] NSWSC 1276
HEARING DATE(S):	27 September 2010
JURISDICTION:	Equity Division Duty List
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	27 September 2010
DECISION:	The defendant’s costs payable by the plaintiff be assessed on an indemnity basis from 18 February 2010.
CATCHWORDS:	PROCEDURE – Costs – Indemnity costs – where defendant obtains order more favourable than defendant’s offer of compromise.
LEGISLATION CITED:	(NSW) Family Provision Act 1982, s 7 (NSW) Uniform Civil Procedure Rules, pt 20 div 4, r 42.15A
CATEGORY:	Consequential orders
CASES CITED:	Pawlowska v Zajglic [2010] NSWSC 864
PARTIES:	Helena Pawlowska (plaintiff/respondent) Andrzej Mieczyslaw Zajglic (defendant/applicant)
FILE NUMBER(S):	SC 08/280532
COUNSEL:	G Foster (plaintiff/respondent) R Hanrahan (defendant/applicant)
SOLICITORS:	Jay Oslanicki Solicitor (plaintiff/respondent) Drexler & Partners (defendant/applicant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY LIST

BRERETON J

Monday, 27 September 2010

2008/280532 Helena Pawlowska v Andrzej Mieczyslaw Zajglic

JUDGMENT (ex tempore)

1 HIS HONOUR: On 6 August 2010, Ball J dismissed with costs the application of the plaintiff Helena Pawlowska for provision pursuant to (NSW) Family Provision Act 1982, s 7, out of the estate of her late mother, of which the defendant Andrzej Mieczyslaw Zajglic was the executor. By notice of motion filed on 30 August 2010, the defendant seeks an order that the costs payable by the plaintiff pursuant to Ball J’s order be assessed on teh indemnity basis from 16 February 2010, being the date of an offer of compromise made under (NSW) Uniform Civil Procedure Rules, Pt 20 Div 4.

2 Ordinarily, applications relating to the costs of proceedings that have been contested to final hearing ought to be made to the judge who has dealt with the proceedings and is familiar with them. I have given consideration to whether, in accordance with that practice, I should not refer this application to Ball J, but, as the parties are before me in the Duty List, and as neither has any objection to me, as opposed to Ball J dealing with the matter, and as the issues on the application are in small compass and do not require a comprehensive appreciation of the course of the trial and the evidence at it, it seems to me that time and costs for all will be saved if I deal with the matter now.

3 The offer, which was made under cover of a letter of 17 February 2010, was to the effect that the plaintiff receive, in lieu of the legacy provided for her by the will of $10,000, a legacy of $50,000 and her costs on a party/party basis out of the estate. As the plaintiff's claim was dismissed with costs, the defendant has plainly obtained a result more favourable than that which would have obtained had his offer been accepted by the plaintiff. There is no suggestion that the offer was in any way non-compliant with the rules.

4 In those circumstances, UCPR r 42.15A has the effect that, the offer having been made by the defendant and not accepted by the plaintiff, and the defendant having obtained an order on the claim more favourable to him than the terms of the offer, then – unless the Court otherwise orders – the defendant is entitled to an order against the plaintiff for the defendant's costs on the ordinary basis up to the day following the day on which the offer was made, and from that day on an indemnity basis.

5 No substantive reason for ordering otherwise has been advanced.

6 For the plaintiff, it has been argued that the motion should be adjourned pending the outcome of an appeal from his Honour's judgment, the plaintiff having filed and served notice of intention to appeal. It seems to me that there would be no utility whatsoever in adopting that course. It is much preferable that the whole of the proceedings at first instance, including the basis on which costs are to be assessed, have been determined before the matter proceeds on appeal, so that all issues arising can, if necessary, be ventilated in the appeal. If it turns out that, as a result of the appeal, the plaintiff in the event betters the offer, then the Court of Appeal will be in a position to deal with and vary the costs order made by Ball J, and the order that I propose to make. If the present application is not dealt with before the appeal, then the parties will have to return to court yet again, and quite unnecessarily, to deal with the present motion.

7 I order that the defendant's costs payable by the plaintiff pursuant to the order made by Ball J on 6 August 2010 be assessed on an indemnity basis from 18 February 2010.

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