Russell v Grace Worldwide (Australia) Pty Ltd t/a Grace Removals (No 2)

[2008] NSWDC 176

CITATION:	Russell v Grace Worldwide (Australia) Pty Ltd trading as Grace Removals (No 2) [2008] NSWDC 176 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	1 August 2008
EX TEMPORE JUDGMENT DATE:	1 August 2008
JURISDICTION:	Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	1 Verdict and judgment for the plaintiff in the sum of $220,867.34. 2 The defendant is to pay the plaintiff’s costs on an ordinary basis up to and including 11 June 2008. The plaintiff is to pay the defendant’s costs on an indemnity basis on and from 12 June 2008, both orders to be determined on the costs as agreed or assessed. 3 The exhibits may be returned. 4 Each party will pay its own costs of today’s proceedings.
CATCHWORDS:	COSTS - defendant's claim for indemnity order - whether offer represented a true compromise
PARTIES:	Shannon Russell (Plaintiff) Grace Worldwide (Australia) Pty Ltd trading as Grace Removals (Defendant)
FILE NUMBER(S):	Newcastle 168/07
COUNSEL:	T R Edwards (Plaintiff) V M Heath (Defendant)
SOLICITORS:	Bale Boshev (Plaintiff) Curwood Lawyers (Defendant)

JUDGMENT

1 In this matter, reasons for judgment were delivered on 25 July 2008 and the proceedings adjourned to 1 August 2008 to allow the parties to address the Court on the issue of costs.

2 In respect of costs, the defendant has filed in court today an affidavit of its solicitor, Ms Dinkha, to which is attached a copy of an offer of compromise served on the plaintiff on 11 June 2008 in a sum which exceeds the amount awarded to the plaintiff by this Court. The defendant seeks an order for indemnity costs from that date.

3 The plaintiff resists the order, arguing that it should be limited to that part of the proceedings that addressed the quantum of his damage. The basis for the argument was that the defendant did not pursue, with any vigour, issues of liability or contributory negligence.

4 I accept the submissions of the defendant in response to this argument, namely that the offer made was a true offer of compromise and that, the offer not having been accepted within the time limited by the rules, it was a matter for the defendant to determine how it then subsequently addressed the proceedings.

5 In the circumstances, I accept the defendant’s submissions.

6 The orders which I make in the matter are as follows.

1 Verdict and judgment for the plaintiff in the sum of $220,867.34.

2 The defendant is to pay the plaintiff’s costs on an ordinary basis up to and including 11 June 2008. The plaintiff is to pay the defendant’s costs on an indemnity basis on and from 12 June 2008, both orders to be determined on the costs as agreed or assessed.

3 The exhibits may be returned.

7 The plaintiff asks for an exception to the orders for costs in respect of today’s proceedings on the basis that the issue of costs ought to have been dealt with when reasons were delivered on 25 July 2008. I accept that submission. Counsel was excused on that occasion but I had assumed that the defendant would appear instructed on the issue of costs when the reasons were delivered.

8 The submissions of counsel for the defendant today entirely miss the point that the plaintiff’s arguments concerning the request for an order other than the order to follow in the usual course could have been put to the Court on 25 July, and in that way the costs of today’s hearing could have been avoided.

9 In those circumstances, each party will pay its own costs of today’s proceedings.

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11/09/2008	-	Format change in case title and parties re trading as. - Paragraph(s) Short case title and parties
11/09/2008	-	format change short case title - Paragraph(s) short case title