Quinn v Bryant (No 2)

[2021] NSWDC 809

District Court

New South Wales

Medium Neutral Citation:

Quinn v Bryant (No 2) [2021] NSWDC 809

Hearing dates:

On the papers

Date of orders:

7 December 2021

Decision date:

07 December 2021

Jurisdiction:

Civil

Before:

P Taylor SC DCJ

Decision:

(1)   The plaintiff’s application is refused.

(2)   The orders of the Court made on 13 September 2021 are confirmed.

Catchwords:

COSTS - party/party - offer of compromise - Calderbank offer - whether compliant with the rules - reasonable time - whether to “order otherwise”

Legislation Cited:

Uniform Civil Procedure Rules 2005, r 20.26, r 42.14, r 42.35

Cases Cited:

Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435; [2005] VSCA 298

Miwa Pty Ltd v Siantan Properties Pty Ltd (No 2) [2011] NSWCA 344

Quinn v Bryant [2021] NSWDC 570

Category:

Costs

Parties:

Terence Quinn (plaintiff)
Susan Bryant (defendant)

Representation:

Counsel:
Mr P Wallis (plaintiff)
Mr A Moutasallem (defendant)

Solicitors:
Pryor Tzannes & Wallis (plaintiff)
Hancock Alldis & Roskov (defendant)

File Number(s):

2019/298560

Publication restriction:

None

Judgment

1. Terence Quinn obtained judgment on 13 September 2021 in the sum of $108,853.10 against the defendant, Susan Bryant. ^[1] The Court ordered that the defendant pay the plaintiff’s costs of the proceedings, with liberty to apply within 14 days in respect of the costs order.

   1. Quinn v Bryant [2021] NSWDC 570.

2. On 17 September 2021 Mr Quinn applied to vary the costs order seeking indemnity costs on and from 3 February 2021, on the basis of an offer of compromise. Ms Bryant opposed the order sought and sought an alternative variation, that she pay 60% of the plaintiff’s costs.

3. Mr Quinn’s purported offer of compromise dated 2 February 2021 was sent by his solicitor to Ms Bryant’s solicitor, Mr Frazis, and was in the following terms:

“WITHOUT PREJUDICE SAVE AS TO COSTS

Dear Mr Frazis

RE:   TERRY QUINN V SUSAN BRYANT – DISTRICT COURT PROCEEDINGS CASE NO. 2019/00298560

We refer to the above matter.

Our client Terence Quinn makes the following Offer of Compromise to settle his claim against Susan Bryant in the above proceedings, being:

- Judgment in favour of the Plaintiff, Terence Quinn in the amount of $55,000 plus costs as agreed or assessed.

This Offer is made in accordance with the Uniform Civil Procedure Rules, Regulation 20.26.

This Offer is open until 4:00pm Tuesday 16 February 2021.

This Offer is also made in accordance with the principles stated in Calderbank v Calderbank [1975] 2 All ER 333.

Yours faithfully

Pryor Tzannes & Wallis”.

4. As the judgment was no less favourable to Mr Quinn than the terms of the offer, r 42.14 of the Uniform Civil Procedure Rules 2005 would ordinarily be applicable to justify the varied order sought by Mr Quinn.

5. Ms Bryant opposes the order on the basis that:

1. the offer did not comply with UCPR 20.26; and

2. judgment was entered in favour of the plaintiff on a basis different from the pleaded case, and therefore rejection of…