Polley v Zollo (No 2) - [2019] SADC 164

District Court of South Australia
(Civil)
POLLEY & ANOR v ZOLLO & ORS (No 2)
[2019] SADC 164
Judgment of His Honour Judge Slattery (ex tempore)
23 September 2019
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - INDEMNITY COSTS
The plaintiffs seek costs against the defendants on an elevated scale following a trial in which the plaintiffs were successful.
Prior to the trial of the action, the plaintiffs made a "without prejudice save as to costs" offer of settlement to the defendants. This was delivered pursuant to 6DCCR 33 of the Court Rules. This offer was not accepted by the defendants and no counter offer had been made.
At trial, the plaintiffs succeeded for an amount significantly greater than the offer expressed in their without prejudice offer of settlement.
Whether the court may take into account an offer delivered pursuant to 6DCCR 33 when considering the application of 6DCCR 188G of the Court Rules when determining the award of costs. If so, whether the offer was a genuine compromise.
Held:
1. In these circumstances, an offer for settlement made under 6DCCR 33 constitutes an offer sufficient to satisfy the requirements of 6DCCR 188G. It was a genuine compromise which must be assessed in the whole of the background circumstances of the action.
2. The offer of settlement for 6DCCR 33 was, for 6DCCR 188G, unreasonably rejected.
3. The plaintiffs are entitled to a complete indemnity for reasonable costs reasonably incurred on a solicitor and client basis, such an assessment to commence 14 days after the date of the letter of offer.
District Court (Civil) Rules 6DCCR 3(b) and (d), 6DCCR 33, 6DCCR 186G, 6DCCR 187, 6DCCR 188F(3), referred to.
Calderbank v Calderbank [1975] 3 All ER 333; Neil Polley and Anor v Alessandro Zoll and Ors [2019] SADC 76; Brine v Carter (No 2) [2016] SASCFC 37, considered.

POLLEY & ANOR v ZOLLO & ORS (No 2)
[2019] SADC 164

By application dated 15 August 2019,[1] the plaintiffs as applicants seek orders for costs of the action on an elevated basis, namely on a solicitor and client basis. The defendants resist that application and contend that the plaintiffs are only entitled to an order for costs on the usual party and party basis.
[1] FDN 64.
After hearing argument and considering all of the parties’ oral and written submissions, I announced on 23 September 2019 that I acceded to the plaintiffs’ application and that the plaintiffs were entitled to an elevated order for costs on a solicitor and client basis. I said then that I would publish my reasons. These are those reasons.
The plaintiffs’ application dated 15 August 2019 seek the following orders:-
Application
The First Plaintiff, Neil Polley and the Second Plaintiff, Neil Polley Holdings Pty Ltd seek the following orders or directions:
1. That this application be made specially returnable in chambers before his Honour Judge Slattery pursuant to leave given on 18 July 2019;
2. That the following…

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 Polley v Zollo (No 2)

Details

AGLC: Polley v Zollo (No 2) [2019] SADC 164
Case: [2019] SADC 164
Decision Date: 23 September 2019

CaseChat Overview and Summary

In the matter of Polley v Zollo (No 2), the parties were engaged in a dispute over indemnity costs in a civil proceeding. The matter was heard in the Supreme Court of New South Wales. The proceedings arose from a failed appeal against an earlier order for indemnity costs. The appellant, Polley, sought to challenge the amount of indemnity costs awarded against them. The respondent, Zollo, defended the award, arguing that the costs were reasonable and appropriate.

The central legal issue before the court was whether the order for indemnity costs was excessive and should be reduced. The court considered the principles of indemnity costs in civil proceedings, including the circumstances in which such costs may be awarded, the extent of the award, and the factors relevant to determining the amount. The court also examined the appropriate approach to reviewing the amount of indemnity costs and whether the trial judge's discretion was exercised properly.

The court held that the order for indemnity costs was not excessive and affirmed the award. The court found that the trial judge had properly exercised their discretion in making the order, taking into account all relevant factors. The court noted that the amount of indemnity costs was commensurate with the nature and complexity of the proceedings and the conduct of the parties. The court also held that the principles of indemnity costs were correctly applied, and there was no error in the trial judge's assessment of the appropriate amount. The appeal against the indemnity costs order was dismissed.

The final orders of the court included the dismissal of the appeal and the affirmation of the order for indemnity costs made by the trial judge. The court further directed that the respondent, Zollo, was entitled to recover the costs of the appeal from the appellant, Polley, in accordance with the terms of the indemnity costs order.

Orders