Samaan bht Samaan v Kentucky Fried Chicken Pty Ltd

[2012] NSWSC 1147

Supreme Court

New South Wales

Case Title:

Samaan bht Samaan v Kentucky Fried Chicken Pty Ltd

Medium Neutral Citation:

[2012] NSWSC 1147

Hearing Date(s):

By written submissions

Decision Date:

24 September 2012

Jurisdiction:

Before:

Rothman J

Decision:

(i)By deleting Order 3 of the Principal Orders issued on 27 April 2012 and substituting in lieu thereof the following Order:

"3.Defendant to pay the plaintiff's costs of the proceedings on the following bases:

(i)Up to and including 19 March 2009 on a party/party basis;

(ii)On and from 20 March 2009, on an indemnity basis."

(ii)Otherwise, the Principal Orders of 27 April 2012 remain unaltered.

(iii)The proceedings are otherwise dismissed.

Catchwords:

COSTS - offer made before trial - offer not accepted - indemnity costs to run from day after offer served on defendant

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Texts Cited:

Category:

Consequential orders

Parties:

Samaan bht Samaan (plaintiff)
Kentucky Fried Chicken Pty Ltd (defendant)

Representation

- Counsel:

A.J. Bartley SC with D.C. Morgan and T. Jones (for the plaintiff)
I. Barker QC with J. Van Aalst (for the defendant)

- Solicitors:

Kydon Segal Lawyers (for the plaintiff)
Baker & McKenzie (for the defendant)

File number(s):

2006/20457

Publication Restriction:

None

JUDGMENT

1. HIS HONOUR: The issue before the Court relates to the terms of the costs order that should issue and, particularly, whether (and from what date) an order for indemnity costs should be made.

2. On 20 April 2012, the Court determined liability and found the defendant, KFC, liable in damages. The parties had agreed on the quantum of damage, which agreement had previously been approved by the Court, and on 27 April 2012, Orders (hereinafter "the Principal Orders") issued, consequent upon that determination and the approved agreement.

3. Pursuant to leave granted in [4] of the Principal Orders, the plaintiff, Monika Samaan, through her tutor, sought, in writing, indemnity costs. The Court directed that the defendant, KFC, indicate, in writing, its attitude to the application and that the parties inform the Court as to whether a hearing is required.

4. No party sought a hearing on this issue. Pursuant to the aforementioned directions, the defendant, by letter dated 10 August 2012, indicated its position. The indication is, to some extent, contradictory. The defendant states that it "does not oppose the orders sought". Yet, it submits that the indemnity costs should "run from the date the Offer expired and not the date the Offer was served". An order that reflected the foregoing submission would be different from the orders that have been sought by the plaintiff.

5. I read the submission of the defendant as an acknowledgement of the effect of the rules of Court on the judgment issued and non-opposition to an order for indemnity costs, but from the date submitted by the defendant, rather than from the date submitted by the plaintiff.

6. There is no factual contest relevant to this issue. An offer (in this judgment referred to as "the Offer") was made by the plaintiff and, on 19 March 2009, in accordance with the Uniform Civil Procedure Rules 2005 ("UCPR"), served on the defendant. This was a date prior to the commencement of the trial. The Offer was said to expire on 17 April 2009. The Offer was not accepted.

7. The effect of the judgment on liability, combined with the agreed and approved quantum, is that the plaintiff obtained judgment for a sum no less favourable to the plaintiff than the terms of the Offer (see UCPR, r 42.14(1)), which Offer was not accepted by the defendant.

8. The issue between the parties as to the date from which indemnity costs are payable is dealt with by the provisions of UCPR r 42.14(2), and, in accordance with UCPR r 42.14(2)(b)(i), indemnity costs would, ordinarily, run from the day after the making of the Offer, namely 20 March 2009.

9. No reason has been given as to why the Court ought to adopt a different course than the one prescribed by the Rules. I see no reason to depart from the prescribed effect, and every reason to adopt the prescribed course.

10. As a consequence, the Court makes the following orders:

    (i)By deleting Order 3 of the Principal Orders issued on 27 April 2012 and substituting in lieu thereof the following Order:

    "3.Defendant to pay the plaintiff's costs of the proceedings on the following bases:

    (i)Up to and including 19 March 2009 on a party/party basis;

    (ii)On and from 20 March 2009, on an indemnity basis."

    (ii)Otherwise, the Principal Orders of 27 April 2012 remain unaltered.

    (iii)The proceedings are otherwise dismissed.

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