Russo v Desiatnik (No 3) - [2015] NSWSC 606

Supreme Court

New South Wales

Medium Neutral Citation: Russo v Desiatnik (No 3) [2015] NSWSC 606
Hearing dates: 19 May 2015
Decision date: 20 May 2015
Jurisdiction: Common Law
Before: Button J
Decision:
(1) The orders made by Magistrate Wahlquist on 19 September 2013 are amended so that they read as follows:
Verdict for Plaintiff.
Judgment given for $28,086.50
Filing Fees: $424.00
Service Fees: $50.00
Plus interest on $28,560.50 pursuant to s 100 of the Civil Procedure Act 2005 (NSW) from 24 August 2006.
(2) The plaintiff must pay the defendant’s costs of and incidental to the appeal and cross-appeal, including reserved costs and the costs of and incidental to the hearing on 19 May 2015.
(3) Such costs are to be on a party to party basis up to 27 August 2014 and thereafter on an indemnity basis.
(4) Such costs, pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), are assessed, on a gross sum basis, at $24,000.

Catchwords: COSTS – indemnity costs – whether it was unreasonable for the plaintiff to reject offer of compromise – whether gross sum costs order should be made
Legislation Cited: Civil Procedure Act 2005 (NSW), s 98(4)(c)
Local Court Act 2007 (NSW), s 39
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Brown v Dunn (1893) 6 R 67
Calderbank v Calderbank [1975] 3 All ER 333
Guss v Veenhuizen (No 2) [1976] HCA 57; 136 CLR 47
Hamod v State of New South Wales [2011] NSWCA 375
Idoport Pty Limited v National Australia Bank Limited & Ors, Idoport Pty Ltd v Donald Robert Argus [2007] NSWSC 23
Noon & Anor v Bondi Beach Astra Retirement Village Pty Ltd & Anor (No 2) [2010] NSWCA 285
Russo v Desiatnik (No 2) [2015] NSWSC 256
Category: Costs
Parties: Salvatore Russo (Plaintiff)
Ronald J Desiatnik (Defendant)
Representation:
Counsel:
E Peden (Defendant)
Solicitors:
Russo & Partners (Plaintiff)
In person (Defendant)

File Number(s): 2013/313178
Decision under appeal

Court or tribunal:

Local Court of New South Wales

Jurisdiction:

Civil

Date of Decision:

19 September 2013

Before:

J Wahlquist LCM

File Number(s):

2012/108074

Judgment

Introduction

On 19 March 2015, I delivered a judgment explaining why I dismissed an appeal brought by Mr Russo (the solicitor) and upheld a cross-appeal brought by Dr Desiatnik (the barrister). The appeal and cross-appeal were from the Local Court of New South Wales and were brought pursuant to s 39 of the Local Court Act2007 (NSW). Each party was represented by counsel. The subject matter of the dispute before me was counsel’s fees that had not been paid by the solicitor. The legal questions in a nutshell were whether invoices rendered by the barrister were valid and whether he was entitled to interest up to judgment. Reference should be made to that judgment: see Russo v Desiatnik (No 2) [2015] NSWSC 256. I shall not unnecessarily repeat here matters discussed within it.
At the end of that judgment, I invited counsel for the barrister to provide me…

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 Russo v Desiatnik (No 3)

Details

AGLC: Russo v Desiatnik (No 3) [2015] NSWSC 606
Case: [2015] NSWSC 606
Decision Date: 20 May 2015

CaseChat Overview and Summary

The case of Russo v Desiatnik (No 3) involved the plaintiff, Russo, and the defendant, Desiatnik, in a legal dispute concerning indemnity costs. Russo had sought an order for indemnity costs against Desiatnik, arguing that it was unreasonable for Desiatnik to reject an offer of compromise. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether it was unreasonable for Russo to reject Desiatnik's offer of compromise, which was made prior to the hearing of the case. The court was also required to determine if a gross sum costs order should be made in favour of Russo. The focus was on the principles of proportionality and reasonableness in the context of offers of compromise and the award of costs.

The court found that Russo's rejection of the offer of compromise was not unreasonable, given the circumstances at the time. The court considered the terms of the offer, the stage of the litigation, and the prospects of success for both parties. The court emphasised that the rejection of an offer of compromise should not automatically lead to an award of indemnity costs. Instead, the court must assess the reasonableness of the rejection in the broader context of the litigation. Given this assessment, the court concluded that a gross sum costs order should not be made in favour of Russo. The court's decision was based on a detailed analysis of the offer, the stage of the proceedings, and the potential outcomes for both parties.

The final orders of the court were that Russo's application for indemnity costs was dismissed, and no gross sum costs order was made in Russo's favour. This decision underscores the importance of evaluating the reasonableness of rejecting an offer of compromise in the context of the overall litigation, rather than relying solely on the fact of the rejection.

Orders