Stevanovic v McIndoe (Costs) - [2011] NSWDC 43

District Court

New South Wales

Medium Neutral Citation: Stevanovic v McIndoe (Costs) [2011] NSWDC 43
Hearing dates: In chambers on written submissions
Decision date: 31 January 2011
Jurisdiction: Civil
Before: Judge Peter Johnstone
Decision:
1. Application for indemnity costs refused.
2. Defendant to pay the plaintiff's costs of this application, on the ordinary basis.

Catchwords: COSTS - application for indemnity costs following service of an Offer of Compromise
Legislation Cited: Civil Procedure Act 2005
Uniform Civil Procedure Rules 2004
Cases Cited: Baulderstone Hornibrook Engineering Pty Limited v Gordian Runoff Limited (No 2) [2009] NSWCA 12
Caine v Lumley General Insurance Ltd (No 2) [2008] NSWCA 109
East West Airlines Limited v Turner (No 2) [2010] NSWCA 159
Equity 8 Pty Ltd v Shaw Stockbroking Ltd [2007] NSWSC 503 at [42]
King Network Group Pty Ltd v Club of Clubs Pty Ltd (No 2) [2009] NSWCA 204
Macquarie Radio Network Pty Ltd v Arthur Dent (No 2) [2007] NSWCA 33
Morgan v Johnson (1998) 44 NSWLR 578
Rolls Royce Industrial Power (Pacific) Ltd v James Hardie & Co Pty Ltd [2001] NSWCA 461
Sedrak v Starr [2010] NSWCA 228
South Eastern Sydney Area Health Service v King [2006] NSWCA 2
Category: Costs
Parties: Velinka Stevanovic (Plaintiff)
William McIndoe (Defendant)
Representation: Mr N Ghabar (Plaintiff)
Mr A Black SC (Defendant)
Anthony Macri (Plaintiff)
Holmann Webb (Defendant)

File Number(s): CourtLink number: 10/100208

Judgment

The costs application

I delivered written reasons for judgment in the substantive proceedings on 19 November 2010 in which I directed the entry of judgment in favour of the plaintiff against the defendant for $338,034.75. I ordered the defendant to pay the plaintiff's costs, on the ordinary basis, but gave leave to the parties to apply for some other costs order. The defendant applied for an order that the plaintiff pay his costs on an indemnity basis from 29 October 2010. That application is opposed.

T he basis for the application is an Offer of Compromise served on 29 October 2010 in which the defendant offered to compromise the plaintiff's claim for $340,000.00. Where a plaintiff obtains a result less favourable than the terms of an offer of compromise made by the defendant, the defendant has a prima facie entitlement to indemnity costs from the date of the offer: UCPR r 42.15.

The proceedings

The plaintiff was injured on 21 May 2007 when a van driven by the defendant collided with her causing injuries. She commenced proceedings by filing a Statement of Claim alleging negligence by the defendant. The defendant filed a Defence and denied any negligence. Alternatively, he alleged contributory negligence.

The defendant served the offer of compromise on 29 October 2010, some 11 days prior to trial. The offer of compromise was in the following terms:

"The Defendant offers to compromise the Plaintiff's claim in the following manner:

(1) By making payment of the sum of $340,000.00 plus costs on a fu ll and final basis.

(2) This offer is made in accordance with Section 20.26 of the

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 Stevanovic v McIndoe (Costs)

Details

AGLC: Stevanovic v McIndoe (Costs) [2011] NSWDC 43
Case: [2011] NSWDC 43
Decision Date: 31 January 2011

CaseChat Overview and Summary

The case of Stevanovic v McIndoe involved a dispute over costs, specifically an application for indemnity costs following the service of an Offer of Compromise. The plaintiff, Stevanovic, sought indemnity costs on the basis that the defendant's conduct in rejecting the offer was unreasonable. The defendant, McIndoe, opposed the application, arguing that the plaintiff's claim for indemnity costs was unjustified. The matter was heard in the court of first instance, which was tasked with determining whether the defendant's conduct warranted the award of indemnity costs.

The primary legal issue before the court was whether the defendant's rejection of the plaintiff's Offer of Compromise was unreasonable, to the extent that it justified an award of indemnity costs. The court considered whether the defendant's conduct fell outside the bounds of what was reasonably arguable, as outlined in established legal principles. This involved a detailed examination of the circumstances surrounding the offer and the defendant's response to it, including the merits of the plaintiff's case and the conduct of the parties throughout the litigation.

After considering the evidence and submissions from both parties, the court determined that the defendant's conduct did not warrant the award of indemnity costs. The court found that the defendant's decision to reject the offer was within the scope of what was reasonably arguable, despite the eventual outcome of the case. Consequently, the court refused the application for indemnity costs. However, the court did order that the defendant pay the plaintiff's costs of the application on the ordinary basis, as the application itself was not without merit but ultimately unsuccessful.

Orders

Orders of the court

1. Application for indemnity costs refused.

2. Defendant to pay the plaintiff's costs of this application, on the ordinary basis.

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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Stevanovic v McIndoe (Costs) [2011] NSWDC 43
Hearing dates:	In chambers on written submissions
Decision date:	31 January 2011
Jurisdiction:	Civil
Before:	Judge Peter Johnstone
Decision:	1. Application for indemnity costs refused. 2. Defendant to pay the plaintiff's costs of this application, on the ordinary basis.
Catchwords:	COSTS - application for indemnity costs following service of an Offer of Compromise
Legislation Cited:	Civil Procedure Act 2005 Uniform Civil Procedure Rules 2004
Cases Cited:	Baulderstone Hornibrook Engineering Pty Limited v Gordian Runoff Limited (No 2) [2009] NSWCA 12 Caine v Lumley General Insurance Ltd (No 2) [2008] NSWCA 109 East West Airlines Limited v Turner (No 2) [2010] NSWCA 159 Equity 8 Pty Ltd v Shaw Stockbroking Ltd [2007] NSWSC 503 at [42] King Network Group Pty Ltd v Club of Clubs Pty Ltd (No 2) [2009] NSWCA 204 Macquarie Radio Network Pty Ltd v Arthur Dent (No 2) [2007] NSWCA 33 Morgan v Johnson (1998) 44 NSWLR 578 Rolls Royce Industrial Power (Pacific) Ltd v James Hardie & Co Pty Ltd [2001] NSWCA 461 Sedrak v Starr [2010] NSWCA 228 South Eastern Sydney Area Health Service v King [2006] NSWCA 2
Category:	Costs
Parties:	Velinka Stevanovic (Plaintiff) William McIndoe (Defendant)
Representation:	Mr N Ghabar (Plaintiff) Mr A Black SC (Defendant) Anthony Macri (Plaintiff) Holmann Webb (Defendant)
File Number(s):	CourtLink number: 10/100208