Suzana Gusavac v Quang Phuc Ngo (No 2)
[2018] NSWDC 143
•17 April 2018
District Court
New South Wales
Medium Neutral Citation: Suzana Gusavac (No 2) v Quang Phuc Ngo [2018] NSWDC 143 Hearing dates: On the papers Date of orders: 17 April 2018 Decision date: 17 April 2018 Jurisdiction: Civil Before: Wilson SC DCJ Decision: (a) the hearing of the defendant’s Notice of Motion regarding costs set for Friday 20 April 2018 is vacated;
(b) the plaintiff is to pay the defendant’s costs of the proceedings in this Court;
(c) I make a lump sum costs order pursuant to s98(4)(c) of the Civil Procedure Act in the sum of $7,130.72;
(d) against that amount for costs, I off-set the net judgment to which the plaintiff would otherwise be entitled of $3,884.55;
(e) I order that the plaintiff pay the defendant’s costs in the sum of $3,246.17.Legislation Cited: Motor Accidents Compensation Act 1999
Civil Procedure Act 2005Category: Costs Parties: Suzana Gusavac (Plaintiff)
Quang Phuc Ngo (Defendant)Representation: Counsel:
Solicitors:
Mr J Trainor (Plaintiff)
Mr D O’Dowd (Defendant)
Plaintiff (self-represented)
Hall & Wilcox (Defendant)
File Number(s): 2017/105136 Publication restriction: None
Judgment on costs
BACKGROUND
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The plaintiff was involved in a motor vehicle accident on 12 September 2013. She brought a claim for compensation under the Motor Accidents Compensation Act 1999 (“the Act”).
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That claim was the subject of assessment at the Claims Assessment and Resolution Service (CARS) of the State Insurance Regulatory Authority on 24 March 2017. The Claims Assessor assessed damages in the sum of $7,384.17, with the insurer to have a credit for payments made in the sum of $1,572.47.
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The plaintiff did not accept that assessment and brought proceedings in this Court. The matter came on before me in September 2017 and was the subject of judgment delivered 18 January 2018.
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I entered judgment for the plaintiff in the sum of $5,457.02 with the insurer to have credit for the sum of $1,572.47. I reserved the question of costs and granted the parties leave to make any application in respect of costs.
THE DEFENDANT’S APPLICATION
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By Notice of Motion filed 15 February 2018, the defendant sought an order for costs against the plaintiff. It also sought a specified gross sum costs orders instead of assessed costs in accordance with s98(4)(c) of the Civil Procedure Act 2005. The defendant sought credit in respect of the payments made of $1,572.47 and an off-set of the remaining judgment sum of $3,884.55 leaving a lump sum costs amount of $3,246.17.
THE EVIDENCE
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The defendant relied upon an affidavit by Matthew Robert Barter, Solicitor, affirmed 1 September 2017. This is marked Exhibit A on the application. Attached to that affidavit was the Certificate issued by CARS on 24 March 2017.
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The fact that the plaintiff obtained judgment in this Court in an amount less than the damages assessed at CARS created a liability in the claimant to pay the insurer’s costs.
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Section 151(2)(b) of the Act provides:
The claimant is liable to pay the costs if the amount of court awarded damages in respect of the claim does not exceed the amount of damage specified in the Certificate of Assessment, but the maximum amount that a claimant is liable to pay if the insurer’s costs are $25,000.00.
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Although costs, in the ordinary course, are discretionary, there is no discretion under s151(2)(b) to make any alternative order. This is consistent with the Motor Accident Scheme in New South Wales where Parliament has encouraged both claimants and more so insurers to abide by results obtained at CARS.
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Following receipt of the Notice of Motion from the defendant, my Associate wrote to both parties in the following terms:
In relation to the defendant’s Notice of Motion filed 15 February 2018, would the plaintiff’s representative please advise whether she consents to the orders sought?
In the event that she does, then his Honour will make the orders in Chambers.
In the event that the plaintiff does not, then would the plaintiff:
(a) indicate the costs order which she contends for together with submissions as to why any such orders are more appropriate than those sought by the defendant; and
(b) file and serve any evidence in support of the orders sought by the plaintiff.
His Honour has today directed that the documents referred to in (a) and (b) above be filed and served on or before 4pm Friday 2 March 2018. Would copies of any documents also be emailed to me directly.
Would both parties indicate whether they are content for the matter to be determined on the papers in Chambers or whether the matter should be relisted for argument? Please advise of your respective positions in this regard on or before 4pm Friday 9 March 2018.
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The plaintiff failed to comply with those orders. The defendant, on the other hand, replied to the email on 28 February 2018 indicating that it was content for the matter to be determined on the papers in Chambers.
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On 6 March 2018, my Associate received from the plaintiff a lengthy email which confirmed that her former solicitor was no longer representing her. This is marked Exhibit 1 on the application. It also contained a number of statements as to representations made by her previous lawyers pertaining to the advice given resulting in the commencement of the proceedings in this Court. If what is said by the plaintiff is accurate, then plainly she was poorly advised.
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By email of 8 March 2018, the plaintiff also confirmed that she was content for the matter to be dealt with on the papers.
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On 7 March 2018, my Associate wrote to the parties enclosing the email received from the plaintiff the previous day and noting that the former solicitor ceased acting on 22 February 2018.
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On 16 March 2018, the solicitor for the defendant confirmed that they wished to press the Notice of Motion and consented to allowing a further 28 days to permit the plaintiff to put on evidence.
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On 19 March 2018, my Associate wrote to the plaintiff and the defendant’s representatives in the following terms:
Dear Ms Gusavac,
As you are aware, the defendant intends to press its Notice of Motion which seeks costs orders against you.
Should you wish to oppose the Notice of Motion you will need to file evidence comprising an affidavit stating why you ought not pay the costs. You also need to identify what cost orders you contend is appropriate.
Your interests would be best served by being legally represented and you ought to retain a solicitor to act for you.
In Chambers today, the Judge has made the following orders:
1. should the plaintiff wish to oppose the defendant’s Notice of Motion then she is to file (you can do this by email to me) and serve any evidence on the question of costs on or before 4pm Friday 13 April 2018;
2. the defendant’s Notice of Motion is listed for hearing on Friday 20 April 2018 at 12 noon.
Again, the court recommends that you seek legal advice in respect of this matter.
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The plaintiff failed to comply with that order.
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On the date set for the filing and service of evidence by the plaintiff, she again wrote to my Associate informing the Court that she did not intend to oppose the orders sought by the defendant and that she wished for the matter to be determined on the papers. The plaintiff’s email of 13 April 2018 at 2.18pm is Exhibit 2 on the application.
CONSIDERATION
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In my opinion, the Court ought to give effect to the Parliamentary intention regarding costs as represented by s151 of the Act.
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I also consider it appropriate for the insurer to have credit for payments made ($1,572.47) and for the net judgment amount ($3,884.55) to be set-off against the lump sum cost amount sought ($7,130.72). In my opinion the amount sought by the insurer for costs is both fair and reasonable.
ORDERS
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Accordingly, I make the following orders:
the hearing of the defendant’s Notice of Motion regarding costs set for Friday 20 April 2018 is vacated;
the plaintiff is to pay the defendant’s costs of the proceedings in this Court;
I make a lump sum costs order pursuant to s98(4)(c) of the Civil Procedure Act in the sum of $7,130.72;
against that amount for costs, I off-set the net judgment to which the plaintiff would otherwise be entitled of $3,884.55;
I order that the plaintiff pay the defendant’s costs in the sum of $3,246.17.
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Decision last updated: 08 June 2018
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