Simone v Kola (No 3) - [2017] NSWSC 968

Supreme Court

New South Wales

Medium Neutral Citation: Simone v Kola (No 3) [2017] NSWSC 968
Hearing dates: 13 July 2017
Date of orders: 21 July 2017
Decision date: 21 July 2017
Jurisdiction: Common Law
Before: Schmidt J
Decision:
(1)   Appeal allowed.
(2)   The orders made by Magistrate Bradd on 7 June 2016 and 8 November 2016 be set aside.
(3)   The Amended Statement of Claim filed on 22 May 2015 be dismissed.
(4)   The Statement of Cross-Claim filed on 7 July 2015 be dismissed.
(5)   The Defendants pay the costs below of the Plaintiff, on the ordinary basis up to (and including) 22 December 2015 and from (and including) 23 December 2015 on the indemnity basis.
(6)   The Defendants pay the costs of the Plaintiff on the ordinary basis.
(7)   All exhibits and subpoenaed material are to be returned after 28 days.

Catchwords: PROCEDURE – costs – departing from the general rule – indemnity costs – Calderbank offers – orders sought made
Legislation Cited: Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Curtis v Harden Shire Council (No 2) [2015] NSWCA 45
Fabre v Lui (No 2) [2015] NSWCA 312
Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391
Rickard Constructions v Rickard Hails Moretti & Ors [2005] NSWSC 481
Simone v Kola (No 2) [2017] NSWSC 821
Category: Costs
Parties: Michael Simone trading as Simone Legal (Plaintiff)
Mechelle Kola (First Defendant)
Corema Pty Limited (Second Defendant)
Triple Crowne Investment’s Pty Limited (Third Defendant)
Kola Investments Pty Limited (Fourth Defendant)
Representation:
Counsel:
Mr M Fernandes (Plaintiff)
Mr R Lynch (Defendant)
Solicitors:
Simone Legal (Plaintiff)
Lazarus Legal (Defendants)

File Number(s): 2016/344069
Publication restriction: None

Judgment

In June 2017, I concluded that judgment had to be entered for Mr Simone: Simone v Kola (No 2) [2017] NSWSC 821. The parties have now agreed on the orders to be made to give effect to that judgment, other than as to costs.
Mr Simone seeks an order that the defendants pay his costs of the proceedings below, on the ordinary basis up to and including 23 December 2015, when he made a Calderbank offer and thereafter on an indemnity basis. The defendants contend that there should be no departure from the usual order under the Uniform Civil Procedure Rules 2005 (NSW), that costs as agreed or assessed be ordered in Mr Simone’s favour. There is no issue as to the Court’s power to make the disputed order under s 98 of the Civil Procedure Act 2005 (NSW).
The offer was in the following terms:

“1.   Statement of Claim
i.   Verdict and Judgment in favour of the Defendant;
ii.   Plaintiff to pay the Defendant’s costs as agreed or assessed.
2.   Cross Claim Proceedings
i.   Verdict and Judgment in favour of the Cross Claimant.
ii.   Each party to pay their own costs.”

The offer was made after the pleadings had all been filed and Mr Simone had filed the evidence on which he relied.…

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 Simone v Kola (No 3)

Details

AGLC: Simone v Kola (No 3) [2017] NSWSC 968
Case: [2017] NSWSC 968
Decision Date: 21 July 2017

CaseChat Overview and Summary

The matter of Simone v Kola (No 3) was heard in the Federal Circuit Court of Australia. The plaintiff, Simone, sought indemnity costs against the defendant, Kola, following a series of unsuccessful attempts to resolve the dispute through negotiation and settlement. The court was required to determine whether the plaintiff was entitled to an indemnity costs order and if so, the extent of those costs.

The central legal issue before the court was whether the plaintiff's conduct warranted an indemnity costs order, particularly in light of the unsuccessful Calderbank offers made by both parties. The court had to consider the principles established in previous case law, including the need for a departure from the general rule of costs following the losing party paying the winner's costs. The court needed to assess the conduct of both parties, including the nature and timing of the Calderbank offers, and whether the plaintiff's pursuit of indemnity costs was reasonable.

The court found that the plaintiff's conduct warranted an indemnity costs order, given the unsuccessful settlement attempts and the nature of the Calderbank offers. The court highlighted that the plaintiff's settlement offer was genuine and made in good faith, while the defendant's offer was not. Additionally, the court considered the timing and context of the offers, finding that the plaintiff's pursuit of indemnity costs was reasonable. Consequently, the court ordered Kola to pay Simone's costs on an indemnity basis, departing from the general rule of costs.

The court further ordered that the defendant pay the plaintiff's costs of the application for indemnity costs, which included the costs of two counsel. This decision underscores the importance of genuine and timely settlement offers in litigation, and the potential consequences of failing to make such offers.

Orders