Pilot Advisory Pty Limited v James Stewart
[2011] QDC 15
•1 March 2011
DISTRICT COURT OF QUEENSLAND
CITATION:
Pilot Advisory Pty Limited v James Stewart [2011] QDC 15
PARTIES:
PILOT ADVISORY PTY LIMITED
(Plaintiff)AND
JAMES STEWART
(Defendant)FILE NO/S:
BD2179/09
DIVISION:
Civil
PROCEEDING:
Trial
ORIGINATING COURT:
District Court, Brisbane
DELIVERED ON:
1 March 2011
DELIVERED AT:
Brisbane
HEARING DATE:
21 February – 22 February 2011
JUDGE:
Reid DCJ
ORDER:
Order that:
i) the defendant pay the plaintiff in the sum of $80, 695.66; and
ii) the defendant pay the plaintiff’s costs of and incidental to the proceedings, including any reserved costs, to be assessed on an indemnity basis
CATCHWORDS:
RECOVERY OF DEBT – pleadings – deemed admissions – application to amend defence and to adjourn trial refused – prejudice to plaintiff – need for report of experts proposed evidence - UCPR rule 166 - Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
COUNSEL:
Mr. Travis for the Plaintiff
SOLICITORS:
Elliott May for the applicant
Defendant in person
This was a trial of a matter in which the plaintiff, in its statement of claim filed on 6 August 2009, sought recovery of $70,422.06 said to be owing to it from the defendant for professional accounting services.
The defendant filed a notice of intention to defend and defence on 8 September 2009. He was then represented by solicitors. I shall refer to the content of the defence in detail later. Suffice it to say that if it was intended to effectively dispute the factual content of the statement of claim, the defence was in my view grossly inadequate, having regard to the provisions of Part 4 of Chapter 6 of the Uniform Civil Procedure Rules (“UCPR”). I shall in due course set out the full contents of the original statement of claim and of the defence, and provide my views as to the effect of those pleadings, paragraph by paragraph.
Although the plaintiff filed an amended statement of claim on 18 May 2010, the defendant has filed no further or amended defence.
I should also say that the plaintiff did make a request, on 11 September 2009, for particulars of the original statement of claim. I was told that these were subsequently provided by the plaintiff’s solicitors under cover of a letter.
The action was also the subject of an application by the plaintiff filed on 29 July 2010 for summary judgment. In response to that application, the defendant, who was still then represented by the same solicitors, filed an affidavit of himself on 1 September 2010. The application was dismissed by consent before me on 2 September 2010.
Importantly, the plaintiff did not, subsequent to that application or at any time, file any further defence incorporating the matters set out in his affidavit.
The defendant was, as I have said, represented by solicitors, from the time of filing his defence on 8 September until a notice of party acting in person was filed on 16 February, very shortly before the commencement of the trial on 21st February 2011.
The action was also the subject of an application to dispense with the defendant’s signature on the request for trial date. An order to that effect was made by Robin QC DCJ on 29 November 2010. The matter was listed for trial at a call over on 2 February 2011.
When the matter was called on for trial on Monday 21 February the defendant sought an adjournment of the matter. He later sought leave to amend the defence. On those applications he indicated:
(i) that his personal financial position had deteriorated and he was no longer able to pay for legal representation;
(ii) that he was not able to pay his previous solicitor’s bill in the sum of about $6,000 to secure the file, although he said he had some, but not all, relevant documents;
(iii) in response to a question from me, after enquiring of and being told by counsel for the plaintiff that if the matter was adjourned the plaintiff’s estimated costs thrown away by the adjournment were likely to be about $6,500, that he would be unable to pay any such costs order that might be made in that amount;
(iv) that he had been told of the trial dates by his then solicitor on 9 February 2011; and
(v) that since that time his ability to prepare for trial had been hindered to some extent by the fact that he had chest pain – and feared a heart attack – on 10 February 2011, but that he was cleared of any serious concerns about his health by a stress test on 15 February 2011.
It was clear from questioning of him that the defendant was unaware of the effect of the pleadings which had been filed. I shall now set out each paragraph of the original statement of claim and the corresponding paragraphs of the defence, so that the effect of the pleadings on the conduct of the trial can be easily seen.
Statement of claim:
1. The plaintiff:
(a)is, and at all material times to this action was, a company duly incorporated and capable of suing and being sued;
(b)at all material times carried on the business of inter alia providing accounting and financial services to persons such as the defendant.
Defence:
1. The defendant admits paragraph 1 of the statement of claim.
This was an admission of formal matters.
Statement of Claim:
2.By written agreement made between the plaintiff and the defendant on or about 12 February 2009 (“the First Retainer”), the plaintiff agreed to perform certain accounting tasks for the defendant in consideration of monies to be paid to the plaintiff on account of the tasks performed.
Defence:
2.In relation to paragraph 2 of the statement of claim, the defendant:
(a)admits that an agreement was made between the plaintiff and the defendant on or about 12 February 2009 by which the plaintiff agreed to perform certain accounting tasks for the defendant in consideration of monies to be paid to the plaintiff for the tasks performed;
(b)says the agreement comprised of an email form the plaintiff to the defendant of 11 February 2009 and an email from the defendant to the plaintiff of 12 February 2009 and discussion between the plaintiff’s representatives and the defendant (hereinafter referred to as “the Ramada Ballina Retainer”).
Comment:
Paragraph 2(a) of the defence effectively admits paragraph 2 of the statement of claim. Paragraph 2(b) of the defence, while referring to emails of 11 and 12 February 2009, also refers to a “discussion between the plaintiff’s representatives and the defendant” but gives no information about the content thereof. Exhibit 3 in the proceedings was a series of emails between the plaintiff and the defendant, including one of 11 February 2009 from the plaintiff to the defendant enclosing the plaintiff’s “engagement letter for the due diligence of the Ramada Ballina” and an email from the defendant to the plaintiff of 12 February 2009 in which he wrote, inter alia, “I accept the Letter of Engagement conditions”.
Statement of claim:
3.Pursuant to the First Retainer, the plaintiff performed work and services on the defendant’s behalf, particulars of which include and are defined as follows:
PARTICULARS
3.1To undertake a review of the business conducted by Ballina Booking Service Pty Limited (“the First Business”) in accordance with AUS 904, excluding an audit opinion;
3.2To conduct a forensic review of the historical earnings of the First Business with a view to reporting on:
3.2.1The stability and strength of the earnings numbers;
3.2.2The consistency of earnings;
3.2.3The accuracy of the calculation of earnings in relation to the management agreement, letting agreement and any other agreement required to operate the First Business;
3.3To review the earnings documentation upon which the defendant based his decision to purchase the First Business;
3.4To conduct due diligence procedures to allow the plaintiff to provide an opinion on the veracity of the earnings of the First Business and identify all risks identified in the achievement of those earnings;
3.5To conduct a review to identify all material known contingent to liabilities to the First Business;
3.6To identify all areas where future capital commitments had been made; and
3.7To review the provision for employee entitlements.
Defence:
3.In relation to paragraph 3 of the statement of claim, the defendant:
(a)admits that the matters referred to in sub-paragraphs 3.1-3.7 inclusive are included in the Ramada Balliner retainer;
(b)repeats and relies upon the Ramada Ballina Retainer for its full terms, true meaning and effect and by reference incorporates all of its terms into this pleading;
(c)admits that the plaintiff performed some accounting tasks for the defendant in relation to the Ramada Ballina Retainer but is unable to plead further to the accounting tasks performed until further and better particulars are provided by the plaintiff;
(d)otherwise denies the allegations pleaded therein on the basis that they are untrue.
Comment:
The defendant effectively admits the work the plaintiff says it performed was within the plaintiff’s retainer. Although further and better particulars as foreshadowed in paragraph (c) were provided by the plaintiff’s solicitor, the defendant has not filed a further pleading. Furthermore, the assertion in subparagraph (d) otherwise denying the matters alleged in paragraph 3 of the statement of claim was not accompanied by a direct explanation for the defendant’s belief that the allegation was untrue. To so plead a denial was a breach of r 166(4) of UCPR. Accordingly, pursuant to r 166(5) thereof, the defendant is taken to have admitted the allegation. It must be remembered that at the time the defence was drawn and filed the defendant was, as I have said, represented by solicitors.
Statement of claim:
4.By written agreement made between the plaintiff and the defendant on or about 2 March 2009 (“the Second Retainer”), the plaintiff agreed to perform certain accounting tasks for the defendant in consideration of monies to be paid to the plaintiff on account of the tasks performed.
Defence:
4.In relation to paragraph 4 of the statement of claim, the defendant:
(a)says that on or about 9 March 2009 an agreement was made between the plaintiff and the defendant by which the plaintiff agreed to perform certain accounting tasks for the defendant in consideration of monies to be paid for the tasks performed (hereinafter referred to as “the Cullen Bay Retainer”).
(b)says the agreement was comprised of a letter from the plaintiff dated 2 March 2009 and signed by the defendant on 9 March 2009 together with discussions between the defendant and the plaintiff’s representatives.
(c)otherwise denies the allegations on the basis that they are untrue.
Comment:
Paragraph 4(a) of the defence effectively admits the making of a further agreement to perform accounting services. Exhibit 4 in the proceedings was the letter of 2 March 2009, signed by the defendant on 9 March 2009. Once again, nothing material is alleged with respect to the “discussions” referred to in paragraph 5(b) of the defence. The denial in subparagraph (c) is again in breach of r 166(4) of UCPR and so, having regard to r 166(5) thereof, the defendant is taken to have admitted the allegations.
Statement of claim:
5.Pursuant to the Second Retainer, the plaintiff performed work and services on the defendant’s behalf, particulars of which include and are defined as follows:
PARTICULARS
5.1To undertake a review of the business conducted by Whitside Pty Ltd and Brownmill Pty Ltd (collectively referred to as “the Second Business”) in accordance with AUS 904, excluding an audit opinion;
5.2To conduct a forensic review of the historical earnings of the Second Business with a view to reporting on:
5.2.1The stability and strength of the earnings numbers;
5.2.2The consistency of earnings;
5.2.3The accuracy of the calculation of earnings in relation to the management agreement, letting agreement and any other agreement required to operate the Second Business;
5.3To review the earnings documentation upon which the defendant based his decision to purchase the Second Business;
5.4To conduct due diligence procedures to allow the plaintiff to provide an opinion on the veracity of the earnings of the Second Business and identify all risks identified in the achievement of those earnings;
5.5To conduct a review to identify all material known contingent liabilities to the Second Business;
5.6To identify all areas where future capital commitments ha been made; and
5.7To review the provision for employee entitlements.
Defence:
5.In relation to paragraph 5 of the statement of claim, the defendant:
(a)admits that subparagraphs 5.1, 5.2, 5.5, 5.6, 5.7 are in whole or in part contained in the Cullen Bay Retainer;
(b)denies that subparagraphs 5.3 and 5.4 of the statement of claim are contained in the Cullen Bay Retainer on the basis that that is untrue;
(c)admits that the plaintiff performed certain accounting tasks for the defendant in relation to the Cullen Bay Retainer but is unable to further plead to those tasks until further and better particulars are provided by the plaintiff;
(d)repeats and relies on Cullen Bay Retainer for its full terms, true meaning and effect and by reference incorporates all of its terms into this pleading;
(e)otherwise denies the allegations pleaded therein on the basis that they are untrue.
Comment:
The statement in 5(c) of the defence that allegations in the statement of claim are denied “on the basis that they are untrue” does not comply with r 166(4) of UCPR. A statement that an allegation is untrue is clearly not a “direct explanation for the party’s belief that the allegation is untrue”. Accordingly, the contents of paragraph 5 of the statement of claim are deemed to be admitted, having regard to r 166(5) of UCPR.
Statement of claim:
6.The plaintiff has issued 4 separate invoices to the defendant in the sum of $70,422.06 on the account of the work performed by the plaintiff under the First and Second Retainer.
Defence:
6.In relation to paragraph 6 of the Statement of claim, the defendant:
(a)admits that the plaintiff has issued three separate invoices to the defendant being the invoices set out in subparagraphs 6.1, 6.2 and 6.3;
(b)denies that the plaintiff has issued the invoice set out in subparagraph 6.4 to the defendant on the basis that the defendant has never received that invoice;
(c)denies that the accounting tasks allegedly performed by the plaintiff in each of invoices solely related to the Ramada Ballina Retainer and the Cullen Bay Retainer on the basis that it is untrue;
(d)is unable to further plead to the allegations until further and better particulars are provided by the plaintiff concerning the actual accounting task performed, the relevant dates, the classification of the representatives of the plaintiff who carried out each task and the date each task was carried out;
(e)otherwise denies the allegations therein on the basis that they are untrue.
Comment:
The allegation that the invoices related to work beyond the scope of the two admitted retainers resulted in the plaintiff filing and serving an amended statement of claim.
A new paragraph was inserted alleging the plaintiff’s agreement to a “commercial services agreement” pursuant to which the plaintiff, for reward, was to provide such services to the defendant. Detailed terms of the agreement were pleaded. In another new paragraph the plaintiff alleged it performed that agreement. Because the defendant did not file any further amended defence, those paragraphs of the amended statement of claim are deemed to be admitted by r 166(1)(a) of UCPR.[1] The only invoice the defendant denies having been issued is therefore the last one, dated 31 May 2009, for $1,422.30. His denial was “on the basis that [he] has never received that invoice”.
In respect of that issue, Mr Traynor, a member of the plaintiff company, gave evidence of the issuing of that final invoice, and of the work in progress (WIP) document on which it was founded. I accept his evidence as to the issuing of the invoice.
[1]Alternatively, if r 168 applies, pursuant to r 165(2) the defendant is not able to give or call evidence in relation to the commercial services agreement as alleged in the new paragraphs of the amended pleading.
Statement of claim:
7.In breach of the First and Second Retainer, the defendant has failed or refused to pay the plaintiff the sum of $70,422.06, or any moneys, despite demand.
Defence:
7.In relation to paragraph 7 of the statement of claim, the defendant:
(a)admits that he has failed or refused to pay the plaintiff the sum of $70,422.06 or any monies;
(b)denies that the defendant is in breach of the Ramada Ballina Retainer or the Cullen Bay Retainer or both;
(c)otherwise denies the allegations on the basis that they are untrue.
Comment:
The denials in subparagraphs (b) and (c), as elsewhere in the defence, were not in compliance with r 166(4) of UCPR, thus the facts alleged are deemed to have been admitted.
Statement of claim:
8.In the premises, the defendant is indebted to the plaintiff in the sum of $70,422.06 pursuant to the First and Second Retainer.
Defence:
8.In relation to paragraph 8 of the statement of claim, the defendant denies the allegations that he is indebted to the plaintiff in the sum of $70,422.06 as a result of the matters pleaded above pursuant to the Ramada Ballina Retainer and the Cullen Bay Retainer.
Comment:
The denial of indebtedness “as a result of the matters pleaded above” is of no worth, as the matters pleaded were almost all either admitted or deemed admitted. Consequently, in my view, the denial of indebtedness was really a false denial and did not effectively put any matters in issue.
Statement of claim:
9.In the alternative, the defendant is indebted to the plaintiff in the sum of $70,422.06 on a quantum meruit basis with such sum representing value for the work and services performed by the plaintiff for the defendant.
And the plaintiff claims:
(a)the sum of $70,422.06;
(b)interest thereon pursuant to s 47 of the Supreme Court Act (1995) accruing daily;
(c)costs.
Defence:
9.In relation to paragraph 9 of the statement of claim, the defendant:
(a)denies that he is indebted to the plaintiff in the sum of $70,422.06 on a quantum meruit basis;
(b)denies that the sum of $70,422.06 represents the reasonable value for the accounting tasks performed by the plaintiff for the defendant;
(c)says that the sum of $70,422.06 for the accounting tasks performed by the plaintiff for the defendant is manifestly excessive.
Comment:
In this paragraph the plaintiff pleaded an alternate basis for recovery of money owing. It did not rely on this at the trial, proving instead the formation of the contract and its performance. In that circumstance the defendant’s assertion that the fees were, on a quantum meruit basis, manifestly excessive was not of any real importance. Moreover, the defendant’s denial that the sum claimed represents “reasonable value for the accounting tasks performed” and was “manifestly excessive”, in the absence of expert accounting evidence as to what would be “reasonable”, was of little import.
During the trial it was accepted that no such expert’s report had ever been provided. Rather, the defendant sought to adduce evidence of what he had been told would be “reasonable” by one or more accountants. It seems he may have relied on their assertions in forming his view that the defendant’s accounts were excessive and unreasonable. Clearly such evidence would be hearsay. In any case, any view expressed by such an accountant would necessarily be expert evidence and so have to comply with the rules with respect to expert evidence. Furthermore, it would necessarily be on what any such accountant had been told by the defendant of the extent of the work required to be performed, and on that account may be inaccurate. Part 5 of Chapter 11 of UCPR deals with expert evidence. No attempt was ever made by the defendant, or by his solicitors it seems, to obtain a report from an accountant that complied with that part of the rules. Unless I were to give leave pursuant to r 427(4)(c) of UCPR, oral evidence of an accountant dealing with the issue of reasonable fees would therefore not be admissible.
I have canvassed the pleadings and other matters in this case in such detail because of the fact that I refused the defendant’s application to adjourn the trial when it was called on and refused his subsequent application to amend the defence. When doing so, I was very conscious of the fact that it effectively meant the plaintiff would almost certainly succeed on its claim and the defendant would really be precluded from giving admissible evidence about the issue foremost in his ongoing opposition to the plaintiff’s claim, namely, that the plaintiff’s fees were excessive.
My decision to allow the trial to proceed in that circumstance and to deny the defendant’s application for an adjournment and to amend his defence were because of the matters referred to herein, particularly in [9] hereof and because;
(i) To do so, in the case of the amendment, would have been to significantly alter the basis on which the trial had been prepared by the plaintiff’s lawyers. Only one witness was arranged to give evidence on the day of the trial and his evidence was largely as to the books of account of the plaintiff’s business, proving WIP records and invoices and a number of letters and emails that had been sent between the parties. To have allowed the amendment would have required additional witnesses to be called with an almost inevitable adjournment of the trial. This would have undoubtedly been required if the defendant had been allowed to rely on the evidence of any accountant that he might call as to the appropriateness of the plaintiff’s charges. Such evidence would almost certainly have been required if he were to be in a position to effectively defend the matter.
(ii) Any amendment would result in the plaintiff’s throwing away costs, estimated by its lawyers at $6,500, which the defendant said he had no capacity to pay. Inevitably, the plaintiff would suffer a real detriment through no fault of its own if the matter was adjourned.
(iii) Although the defendant might be adversely affected by my refusal to accede to his applications, in my view the decision of the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 militated against acceding to his applications. In so deciding, I was mindful of the matters set out herein and of the fact that the court, a publicly funded organ of government, had set the matter down for trial in a usual way and at a time when the defendant was represented by solicitors.
(iv) I was also conscious, as the defendant in fact ultimately submitted, that he agreed he owed the plaintiff some money for the work it had done. He submitted that this should be limited to no more than $5,000 plus outlays with respect to each of the two “due diligence” retainers and $1,400 with respect to what was described as the “commercial services agreement”. The documentation tendered in the proceedings showed that outlays for travel to Ballina and Darwin were some $2,664.74. In all, therefore, the defendant was himself effectively asserting that the plaintiff was entitled to over $14,000 of a total claim of $70,422.06. In view of his inability to pay any costs order with respect to the adjournment he had applied for, it seems reasonable to suppose he would also not be able to pay the amount of any claim the plaintiff might recover.
In such circumstances, and despite the difficulties the defendant thereby faced, I refused his applications to amend the defence or to adjourn the trial.
The plaintiff relied entirely on the evidence of Mr Traynor, an experienced chartered accountant and member of the plaintiff company. He had himself been responsible for, and did work on, each of the “due diligence” retainers. He gave evidence on the formation of the agreements and of a number of letters between the plaintiff and the defendant, which were tendered through him. He also gave evidence of the plaintiff’s system of recording work performed by members and employees of the plaintiff. This formed the basis of the WIP document, Exhibit 5 in the proceedings, and resulted in four invoices being prepared and sent to the defendant for payment. While the defendant acknowledged receipt of the first three invoices, he denied receiving the fourth which was in an amount of $1,422.30. Whether he received it or not is, in my view, not of great import. What is necessary to prove to enable recovery is that the work was performed in accordance with the agreement between the plaintiff and the defendant. I find that it was. I also accept Mr Traynor’s evidence that the invoices were sent. I am not satisfied that the defendant did not receive it, although it is perhaps possible that he did not.
While I generally accept the evidence of Mr Traynor, I do note that the determination of questions of credit in this case, in which Mr Traynor and the defendant were the only witnesses, was somewhat difficult because of the fact that their evidence was necessarily curtailed because of the state of the pleadings and the effect of that on what evidence was therefore relevant.
Nevertheless, I find the defendant’s explanation as to why he did not complain to the plaintiff about the level of its fees after receiving the first invoice, dated 28 February 2009, and which he said he did not receive until late in March of that year, unconvincing in the extreme. I find it difficult to accept that the invoice was not sent on or about the date on its face, namely 28 February 2009, and in the usual course the plaintiff would have received it very shortly thereafter.
Furthermore, I accept the evidence of Mr Traynor that the plaintiff wrote two letters and made numerous phone calls to the plaintiff, leaving messages for him to phone back to discuss fees, but the defendant did not respond to any of those letters or phone calls. In my view, such conduct is very unlikely to be that of a man agitated by his accountant’s alleged unreasonable fees and much more likely that of a man unable to pay such fees as they became due.
In such circumstances, insofar as there is conflict between their evidence, I prefer that of Mr Traynor.
I find that the matters alleged in the sum as claimed are proven. I might add that objection was taken to the evidence of the defendant in so far as it canvassed matters outside the issues in dispute as disclosed by a consideration of the pleadings. I consider that there is much to be said for the view that almost all of what the defendant said in evidence was inadmissible. In the end, because of the view I have taken, it is necessary to make a specific finding about that. I should say, however, that in my view, if evidence from accountants was available as to the need of appropriate charging by a firm of accountants, then that was not a matter in dispute having regard to the pleadings.
I give judgment for the plaintiff in the sum of $70,422.06 as claimed and allow interest thereon at 8% per annum as follows:
(i) On $18,263.30 from 15 March 2009, in the sum of $2866.09
(ii) On $12,828.55 from 17 April 2009, in the sum of $1920.42
(iii) On $37,907.91 from 2 June 2009, in the sum of $5292.57
(iv) On $1,422.30 from 15 June 2009, in the sum of $194.52
After giving my reasons for judgment Mr. Travis submitted that costs must be assessed on an indemnity basis.
An offer to settle was made by the plaintiff to the defendant on 6 September 2010 in accordance with r 353 of UCPR. This settlement offer provided that the defendant pay the plaintiff the sum of $44,500.00 in full and final satisfaction of all claims asserted in this matter. It further provided that the defendant pay the plaintiff’s legal costs in the sum of $13,037.75.
In compliance with r 355(1) of UCPR, the offer was open for acceptance until 24 September 2010. The defendant did not accept this offer. It is on this basis that Mr. Travis submits the plaintiff should be awarded costs on an indemnity, as opposed to a standard, basis.
As provided by r 360 of UCPR, if an offer to settle is made by the plaintiff that is not accepted by the defendant, and the plaintiff obtains a judgment no less favourable than the offer to settle, and the court is satisfied that the plaintiff was at all times willing and able to carry out the offer, then the court must order costs on an indemnity basis.
It is clear that the settlement offer was considerably less than the amount awarded at judgment. I believe that the plaintiff was willing and able to carry out this offer. Thus, I am satisfied that the conditions in r 360 have been met.
In all, therefore, there is judgment for the plaintiff in the sum of $80,695.66. I will order that the defendant pay to the plaintiff costs of and incidental to the proceedings, including any reserved costs, on an indemnity basis.
I will however, in light of Mr. Stewarts’s absence today, grant the defendant 3 days to provide written submissions as to why costs should not be assessed on an indemnity basis if he wishes to do so. Given the mandatory nature of r 360, the defendant can only dispute costs on an indemnity basis by submitting that an offer was never made to him, that the plaintiff was unwilling to carry out the offer, or that he accepted the offer. I grant the defendant until 4:00pm on 4 March 2011 to provide these reasons.
In accordance with my direction, Mr. Stewart provided written submissions as to costs on 04/03/11. In those submissions Mr. Stewart said that his “strong recollection” is that his former solicitors did not inform him of any offer of settlement from the plaintiff. He submits that he has no such offer in his possession and does not recollect ever seeing the offer. He submitted that in the circumstances each party bear their own costs.
The plaintiff responded to these submissions on 07/03/11. That response included an affidavit that was sworn by James Sean Whittle, the plaintiff’s solicitor, in proof of service of the plaintiff’s offer to settle. Mr. Whittle stated that on 6 September 2010 he sent an email, exhibit JSW-1 to his affidavit, to Mr. Lance Pollard, a director of the defendant’s former solicitors Bennet & Philip, with the offer of settlement attached. Mr. Whittle said that the email did not ‘bounce back’. He stated that no email was received from Bennet & Philip in response to the offer. The plaintiff submits that the alleged failure of Mr. Stewart’s solicitors to notify him of the offer is not a matter which affects the plaintiff’s entitlement to recover indemnity costs.
I find that the offer of settlement was served on the defendant. If such a failure to notify the defendant of the offer occurred, then that is a matter between Mr. Stewart and his former solicitors. As such, I confirm my initial order of judgment for the plaintiff in the sum of $80,695.66 and order that the defendant pay to the plaintiff costs of and incidental to the proceedings, including any reserved costs, on an indemnity basis.
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