Supreme Court
New South Wales
Medium Neutral Citation: Sedgwick v Varzonek (No. 2) [2015] NSWSC 1613 Hearing dates: 21 October 2015 Date of orders: 30 October 2015 Decision date: 30 October 2015 Jurisdiction: Equity Before: Slattery J Decision: The defendant is to pay the plaintiff’s costs on the indemnity basis from 25 July 2014. The Court will make a specified gross sum order on that basis if the parties can agree upon a mechanism for the making of such an order.
Catchwords: COSTS – Calderbank offer – offer of compromise under UCPR – costs to be assessed on indemnity basis – interaction of offers of compromise and apportionment of costs on unsuccessful claims – Court’s power to make specified gross sum order under Civil Procedure Act, s 98(4)(c) Legislation Cited: Civil Procedure Act, s 98(4)(c)
Uniform Civil Procedure Rules 2005, rr 4.21, 20.26, 42.14Cases Cited: Australasian Performing Rights Association Ltd v Marlin [1999] FCA 1006
Beach Petroleum NL v Johnson (No. 2) (1995) 57 FCR 119
Bostik Australia Pty Ltd v Liddiard (No. 2) [2009] NSWCA 304
Calderbank v Calderbank [1975] 3 WLR 586
Dailhou v Kelly; State of NSW v Kelly (No 3) [2014] NSWSC 1220
Hadid v Lenfest Communications Inc [2000] FCA 628
Harrison v Schipp [2002] NSWCA 213; 54 NSWLR 738
Old v McInnes and Hodgkinson [2011] NSWCA 410
Sedgwick v Varzonek [2015] NSWSC 1275
Tati v Stonewall Hotel Pty Ltd (No 2) [2012] NSWCA 124
Whitney v Dream Developments Pty Ltd [2013] NSWCA 188; 84 NSWLR 311Category: Costs Parties: Plaintiff: Richard Charles Sedgwick
Defendant: Krystyna VarzonekRepresentation: Counsel:
Solicitors:
Plaintiff: M. Willmott SC; A. Blank
Defendant: P. O’Loughlin
Plaintiff: David Leon Penkin, David Landa Stewart Lawyers
Defendant: Anthea Kennedy, Teece Hodgson & Ward
File Number(s): 2012/387931 Publication restriction: No
Judgment
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Mr Sedgwick, the plaintiff, has been successful in his claim in estoppel that he is entitled to $200,000 from the proceeds of the settlement of Marlene Reis’ personal injuries litigation. But his claims in contract and for a family provision order under the Succession Act 2006 have failed, and the parties have indicated that they do not require a decision from the Court on the alternative restitution claim: Sedgwick v Varzonek [2015] NSWSC 1275. Mr Sedgwick now applies for a special costs order. The Court will grant that order.
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This is the Court’s second judgment in these proceedings. Events, matters and things are referred to in this judgment in the same way as they are in the Court’s principal judgment.
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Mr Sedgwick seeks his costs on the ordinary basis up to and including 24 July 2014 and on an indemnity basis from 25 July 2014 up to the conclusion of the proceedings.
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Mr Sedgwick principally submits he is entitled to those orders because Mrs Varzonek, the defendant and Ms Reis’ executrix, unreasonably refused an offer of compromise made on 24 July 2014.
Offers of compromise
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Mr Sedgwick made three separate offers of compromise to Mrs Varzonek. First, an offer of compromise…
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- AGLC
- Sedgwick v Varzonek (No. 2) [2015] NSWSC 1613
- Case
- [2015] NSWSC 1613
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included the appropriate assessment of costs following a Calderbank offer, which is a settlement offer made without admitting liability, and the extent to which such an offer affects the apportionment of costs for unsuccessful claims. The court was required to decide whether the unsuccessful party should bear the costs of the successful party's unsuccessful claims and how these costs should be calculated. Additionally, the court needed to examine the circumstances under which it could order a specified gross sum for costs under the Civil Procedure Act.
In reaching its decision, the court considered the established principles regarding Calderbank offers and their implications for cost assessments. It held that the unsuccessful party was liable for the successful party's costs of the unsuccessful claims, but these costs should be assessed on an indemnity basis. The court also noted that the Calderbank offer did not necessarily preclude the making of a specified gross sum order under the Civil Procedure Act. The court found that the unsuccessful party's conduct justified such an order, and it exercised its discretion to make a specified gross sum order for costs, taking into account the overall conduct of the case.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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