Seary v White (No 5 - Costs) - [2008] NSWDC 21

CITATION: Seary v White (No 5 - Costs) [2008] NSWDC 21

HEARING DATE(S): 15 February 2008

JUDGMENT DATE:
21 February 2008

JURISDICTION: Civil Jurisdiction

JUDGMENT OF: Johnstone DCJ at 1

DECISION: 1. Defendant to pay the plaintiff’s costs of the substantive proceedings, on the ordinary basis, incurred before 11.00am on 20 June 2007, together with any additional costs incurred by her by reason of the adjournment of the hearing from 24 August to 14 November 2007.
2. Plaintiff to pay defendant’s costs of the substantive proceedings, on an indemnity basis, incurred after 11.00am on 20 June 2007, excluding any additional costs incurred by him by reason of the adjournment of the hearing from 24 August to 14 November 2007
3. Plaintiff to pay one-half of the defendant’s costs of the costs applications, on the ordinary basis. The plaintiff is to bear her own costs of the costs applications.

CATCHWORDS: COSTS - offer of compromise made during the course of the trial - whether offer invalid because it was not exclusive of costs: r 20.26(2) - whether the offer was left open for such time as was reasonable in the circumstances: r 20.26(7)(b) - whether there was conduct on the part of the defendant to justify displacement of the presumption under r 42.15(2) such that there should be some other order - principles relevant to the exercise of discretion

LEGISLATION CITED: Motor Accidents Compensation Act 1999: s 151, s 152
UCPR: r 20.26 and r 42.15
Civil Procedure Act 2005: s 56(1)

CASES CITED: Brittain v Commonwealth (No 2) [2006] NSWSC 528 at [12]
Commonwealth of Australia v Smith [2005] NSWCA 478 at [217]
Cook v Hawes [2002] NSWCA 120
Dunstan v Rickwood (No 2) [2007] NSWCA 266 at [50]
Fordham v Fordyce [2007] NSWCA 129 at [50]
G R Vaughan (Holdings) Pty Ltd v Vogt [2006] NSWCA 263
Hally v Dennis (1955) 95 CLR 661 at 664
Keddy v Foxall [1955] VR 320 at 323-4
Knight v Clifton [1971] Ch 700
Lahoud v Lahoud [2006] NSWSC 126 at [23]
Legal Services Commissioner v Dempsey [2007] QSC 270 at [30] - [33]
Leichhardt Municipal Council v Green [2004] NSWCA 341 at [19]
Lollis v Loulatzis [2008] VSC 35 at [29]
London Welsh Estates Ltd v Phillip (1931) 144 LT 693
Maitland v Fisher [No 2] (1992) 27 NSWLR 721 at 725
Ng v Chong [2005] NSWSC 385 at [13] - [15]
Oshlack v Richmond River Council [1998] HCA 11 at [40] and [69]
Pacific General Securities Ltd v Soliman & Sons Pty Ltd [2006] NSWSC 13 at [100]
Peter Willis v Health Communications Network Ltd (No 2) [2008] NSWCA 2 at [20]
Re: Nardell Coal Corporation (In liq) v Hunter Valley Coal Processing [2003] NSWSC 642 at [145].
San v Rumble (No 2) [2007] NSWCA 259 at [13] – [14]
South Eastern Sydney Area Health Service v King [2006] NSWCA 2 at [90]
Smith v Grant [2006] NSWCA 244 at [79]
TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd [2008]…

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.

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Details

Case: [2008] NSWDC 21
Decision Date: 21 February 2008

CaseChat Overview and Summary

The matter of Seary v White (No 5) involved a dispute concerning the costs incurred during the proceedings. The case was heard in the Supreme Court of New South Wales. The plaintiff, Seary, sought an order for the defendant, White, to pay the costs of the substantive proceedings and costs applications. The defendant argued that an offer of compromise made during the trial should be considered in the costs determination.

The court needed to decide whether the offer of compromise was invalid because it was not exclusive of costs as required by rule 20.26(2). Additionally, the court had to consider if the offer was left open for such a time as was reasonable in the circumstances under rule 20.26(7)(b). The court also needed to determine if there was conduct on the part of the defendant that justified displacing the presumption under rule 42.15(2), such that there should be some other order. The principles relevant to the exercise of discretion were also considered.

The court found that the offer of compromise was not invalid because it was not exclusive of costs. It was left open for such a time as was reasonable in the circumstances. The court did not find any conduct on the part of the defendant that warranted displacing the presumption under rule 42.15(2). Therefore, the court exercised its discretion to make an order for costs as set out in the orders section.

Orders

Orders of the court

1. Defendant to pay the plaintiff's costs of the substantive proceedings, on the ordinary basis, incurred before 11.00am on 20 June 2007, together with any additional costs incurred by her by reason of the adjournment of the hearing from 24 August to 14 November 2007. 2. Plaintiff to pay defendant's costs of the substantive proceedings, on an indemnity basis, incurred after 11.00am on 20 June 2007, excluding any additional costs incurred by him by reason of the adjournment of the hearing from 24 August to 14 November 2007 3. Plaintiff to pay one-half of the defendant's costs of the costs applications, on the ordinary basis. The plaintiff is to bear her own costs of the costs applications.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Seary v White (No 5 - Costs) [2008] NSWDC 21
HEARING DATE(S):	15 February 2008
JUDGMENT DATE:	21 February 2008
JURISDICTION:	Civil Jurisdiction
JUDGMENT OF:	Johnstone DCJ at 1
DECISION:	1. Defendant to pay the plaintiff’s costs of the substantive proceedings, on the ordinary basis, incurred before 11.00am on 20 June 2007, together with any additional costs incurred by her by reason of the adjournment of the hearing from 24 August to 14 November 2007. 2. Plaintiff to pay defendant’s costs of the substantive proceedings, on an indemnity basis, incurred after 11.00am on 20 June 2007, excluding any additional costs incurred by him by reason of the adjournment of the hearing from 24 August to 14 November 2007 3. Plaintiff to pay one-half of the defendant’s costs of the costs applications, on the ordinary basis. The plaintiff is to bear her own costs of the costs applications.
CATCHWORDS:	COSTS - offer of compromise made during the course of the trial - whether offer invalid because it was not exclusive of costs: r 20.26(2) - whether the offer was left open for such time as was reasonable in the circumstances: r 20.26(7)(b) - whether there was conduct on the part of the defendant to justify displacement of the presumption under r 42.15(2) such that there should be some other order - principles relevant to the exercise of discretion
LEGISLATION CITED:	Motor Accidents Compensation Act 1999: s 151, s 152 UCPR: r 20.26 and r 42.15 Civil Procedure Act 2005: s 56(1)
CASES CITED:	Brittain v Commonwealth (No 2) [2006] NSWSC 528 at [12] Commonwealth of Australia v Smith [2005] NSWCA 478 at [217] Cook v Hawes [2002] NSWCA 120 Dunstan v Rickwood (No 2) [2007] NSWCA 266 at [50] Fordham v Fordyce [2007] NSWCA 129 at [50] G R Vaughan (Holdings) Pty Ltd v Vogt [2006] NSWCA 263 Hally v Dennis (1955) 95 CLR 661 at 664 Keddy v Foxall [1955] VR 320 at 323-4 Knight v Clifton [1971] Ch 700 Lahoud v Lahoud [2006] NSWSC 126 at [23] Legal Services Commissioner v Dempsey [2007] QSC 270 at [30] - [33] Leichhardt Municipal Council v Green [2004] NSWCA 341 at [19] Lollis v Loulatzis [2008] VSC 35 at [29] London Welsh Estates Ltd v Phillip (1931) 144 LT 693 Maitland v Fisher [No 2] (1992) 27 NSWLR 721 at 725 Ng v Chong [2005] NSWSC 385 at [13] - [15] Oshlack v Richmond River Council [1998] HCA 11 at [40] and [69] Pacific General Securities Ltd v Soliman & Sons Pty Ltd [2006] NSWSC 13 at [100] Peter Willis v Health Communications Network Ltd (No 2) [2008] NSWCA 2 at [20] Re: Nardell Coal Corporation (In liq) v Hunter Valley Coal Processing [2003] NSWSC 642 at [145]. San v Rumble (No 2) [2007] NSWCA 259 at [13] – [14] South Eastern Sydney Area Health Service v King [2006] NSWCA 2 at [90] Smith v Grant [2006] NSWCA 244 at [79] TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd [2008]…