Wainwright v Fuller - [1999] NSWSC 1019

CITATION: Wainwright v Fuller & Ors [1999] NSWSC 1019

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): 11823/92

HEARING DATE(S): 16/08/99

JUDGMENT DATE:
11 October 1999

PARTIES :

Jelica Helen Wainwright by her tutor Jacob Pejkovic (plaintiff)
Jennifer Fuller (defendant1)
Alan Henderson (defendant 2)
Paul Robert Wainwright (defendant 3)

JUDGMENT OF: Hidden J at 1

COUNSEL : P Jones (plaintiff)
R Bartlett SC (defendants)

SOLICITORS: Benjamin & Robinson (plaintiff)
Abbott Tout (defendants)

CATCHWORDS: Costs - indemnity basis - offer of compromise by plaintiff - judgment for greater amount - whether exceptional case - Supreme Court Rules Part 52A, rule (22)4.

ACTS CITED: Supreme Court Rules

CASES CITED: Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721
Morgan v Johnson (1998) 44 NSWLR 578
Connor v Hatgis (No 2) (Court of Appeal unreported 7 December 1995)

DECISION: Indemnity costs ordered

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
HIDDEN J

Monday, 11October 1999

No 11823/92 Jelica Helen Wainwright (by her tutor Jacob Pekjovic) v Jennifer Fuller & 2 Ors

Reasons for judgment on costs
1 HIS HONOUR: The amount of the judgment in this matter, calculated in accordance with my reasons of 22 October and 17 December 1998, was almost seven million dollars. On 26 September 1996, while the case was part heard, the plaintiff made an offer of compromise under Part 22 of the Supreme Court Rules of roughly five million, seven hundred and fifty thousand dollars. Her counsel now seeks costs on an indemnity basis for the period after that date because the judgment is no less favourable than the terms of that offer: Pt 52A, r 22(4).
2 At the time the offer was made the plaintiff’s particulars under Pt 33, r 8A did not include a claim for a night carer. That claim was made later in amended particulars and was allowed, the amount involved being in the order of one million, one hundred and fifty thousand dollars. Counsel for the plaintiff accepts that that sum should be deducted from the amount of the judgment for the purpose of comparing it with the amount of the offer: cf Van Doore v Mendez (Dunford J, unreported, 30 June 1997). Even so, the judgment exceeds the offer by about $48,000.
3 The policy behind a provision such as Pt 52A, r 22(4), and the principles governing the exercise of the discretion conferred by it, were summarised in Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 at 724-6: see also Morgan v Johnson (1998) 44 NSWLR 578 at 581-2. It is clear that a plaintiff is ordinarily entitled to an order for indemnity costs when the conditions of the sub-rule are met, and it would be only in an exceptional case that the Court would order otherwise. Is this that exceptional case?
4 To understand the argument of counsel for the defendants that it is, it is necessary to refer to the protracted history of the hearing. It proceeded intermittently over the period between 13 May…

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 Wainwright v Fuller

Details

AGLC: Wainwright v Fuller [1999] NSWSC 1019
Case: [1999] NSWSC 1019
Decision Date: 11 October 1999

CaseChat Overview and Summary

The case of Wainwright v Fuller was heard in the Supreme Court, where the dispute centred on the costs incurred in litigation and the applicability of the indemnity basis for those costs. The plaintiff, Wainwright, sought to recover costs on an indemnity basis, despite having offered a compromise that was ultimately rejected by the defendant, Fuller. The case hinged on whether the court should deem this situation an exceptional case under the Supreme Court Rules Part 52A, rule (22)4.

The legal issue before the court was whether, in light of the plaintiff’s prior offer of compromise, the court could order costs on an indemnity basis, given that the plaintiff ultimately received a judgment for a greater amount than the initial offer. The court had to consider the principle of proportionality in awarding costs and whether there were exceptional circumstances justifying an indemnity order.

The court examined the principles guiding cost awards and the factors that could deem a case exceptional under rule (22)4. It was established that the plaintiff's offer of compromise was a significant factor but not necessarily determinative. The court found that the exceptional circumstances needed to be clearly demonstrated and balanced against the overall conduct of the parties. In this instance, the court concluded that while the plaintiff's offer was a relevant consideration, it did not constitute an exceptional case warranting an indemnity order. Consequently, the court determined that the costs should be awarded on a standard basis.

The final orders of the court were that the costs of the proceedings were to be awarded on a standard basis, reflecting the court's assessment that the circumstances did not meet the threshold for an exceptional case under the Supreme Court Rules.

Orders