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Sedgwick v Varzonek (No. 2)

Sedgwick v Varzonek (No. 2)

Case [2015] NSWSC 1613 30 October 2015

Costs

Limitation Periods

Abuse of Process

Civil Litigation & Procedure

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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, 42.14
Cases 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 311
Category: Costs
Parties: Plaintiff: Richard Charles Sedgwick
Defendant: Krystyna Varzonek
Representation:
Counsel:
Plaintiff: M. Willmott SC; A. Blank
Defendant: P. O’Loughlin
Solicitors:
Plaintiff: David Leon Penkin, David Landa Stewart Lawyers
Defendant: Anthea Kennedy, Teece Hodgson & Ward

File Number(s): 2012/387931
Publication restriction: No

Judgment

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.
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.
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.
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

Mr Sedgwick made three separate offers of compromise to Mrs Varzonek. First, an offer of compromise…

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 Sedgwick v Varzonek (No. 2)

Details

AGLC: Sedgwick v Varzonek (No. 2) [2015] NSWSC 1613
Case: [2015] NSWSC 1613
Decision Date: 30 October 2015

CaseChat Overview and Summary

In the case of Sedgwick v Varzonek, the dispute revolved around the costs associated with a Calderbank offer made under the Uniform Civil Procedure Rules (UCPR). The matter was before the court to determine how the costs should be assessed and the interaction between the offers of compromise and the apportionment of costs for unsuccessful claims. The court was also tasked with considering whether to exercise its discretion to make a specified gross sum order under section 98(4)(c) of the Civil Procedure Act.

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