Williamson v Carneys Lawyers (No 2)

[2015] NSWSC 1175

Supreme Court

New South Wales

Medium Neutral Citation:	Williamson v Carneys Lawyers (No 2) [2015] NSWSC 1175
Hearing dates:	17 August 2015
Decision date:	17 August 2015
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	1. Dismiss the plaintiff’s notice of motion filed on 10 August 2015.  2. Order the plaintiff to pay the first and third defendants’ costs of the proceedings on an ordinary basis up to an including 22 August 2014 and on an indemnity basis thereafter.
Catchwords:	COSTS – whether order for costs should be deferred until conclusion of fresh proceedings – no basis for deferral shown – costs ordered on indemnity basis from day after expiry of Calderbank offer – no question of principle
Cases Cited:	Calderbank v Calderbank [1975] 3 All ER 333 Williamson v Carneys Lawyers [2015] NSWSC 1080
Category:	Costs
Parties:	Hugh Francis Arthur Williamson (Plaintiff) Carneys Lawyers Pty Ltd (First Defendant) Rabobank Australia Limited (Second Defendant) Wallace Edward Meakes (Third Defendant)
Representation:	Counsel: Plaintiff in person N Polorotoff (solicitor) (First and Third Defendants)   Solicitors: K&L Gates (First and Third Defendants)
File Number(s):	2012/00302629

Judgment

Introduction

1. Following delivery of reasons for judgment in this matter on 5 August 2015 (Williamson v Carneys Lawyers [2015] NSWSC 1080), both the plaintiff and the first and third defendants (the defendants) applied for special costs orders. The plaintiff applied by notice of motion for an order that the costs of these proceedings be reserved pending the outcome of separate proceedings which he has filed in this Court. The defendants applied for indemnity costs associated with an offer they had made to the plaintiff on 25 July 2014, which had not been accepted.

2. Following the hearing of these applications, I refused the plaintiff’s application and made an order, on the defendants’ application, that the plaintiff pay the defendants’ costs of the proceedings on the ordinary basis up to and including 22 August 2014 and on an indemnity basis thereafter. My reasons for these orders follow.

The plaintiff’s application that costs be reserved pending the determination of separate proceedings

3. The plaintiff relied on an affidavit in support of his notice of motion to which was annexed a statement of claim and an amended statement of claim that he had filed in proceedings 2015/226349 in the Common Law Division of this Court (the second proceedings). In the second proceedings, which were commenced on 3 August 2015, the plaintiff claims damages against thirteen parties including several financial institutions (Bendigo and Adelaide Bank Limited, Elders Limited, Rural Bank Limited), various lawyers (including those who represented the defendants in these proceedings) as well as the defendants’ insurers.

4. It is not necessary for the purposes of determining the plaintiff’s application to set out the allegations made in the second proceedings in any detail. It is sufficient to say that there are unparticularised allegations that some of the relevant parties were guilty of fraud and that others showed “reckless disregard for the truth of the matter”. The relevant “matter” appears to be the evidence of Les Hannan, which I accepted in these proceedings, and which formed the basis for my finding that the plaintiff had been informed of the potential quarry development in the vicinity of the property, Reevesdale, which he proposed to, and did in fact, purchase. It is not open to me to revisit findings I made in the reasons for judgment, even if any basis were provided for me to do so, which it has not been.

5. Ultimately, the plaintiff submitted that the real reason to defer the making of an order was that he had insufficient funds to comply with any order that he pay the defendants’ costs of these proceedings unless and until the second proceedings were determined in his favour and he received substantial damages. In my view, neither this matter, nor anything raised in the pleading associated with the second proceedings, provides any reason to defer making a costs order in these proceedings.

The defendants’ application for indemnity costs following a Calderbank offer

6. Ms Polorotoff, who appeared on behalf of the defendants, read an affidavit of Gregory Couston, the defendants’ solicitor, to which was annexed a letter dated 25 July 2014 to the plaintiff’s then solicitor, Bruce Dennis. The letter contained an offer to settle the proceedings on the basis that the defendants would pay the plaintiff the sum of $40,000 and that judgment would be entered in favour of the defendants with no order as to costs. The offer was expressed to remain open for 28 days from the date of the letter (until 22 August 2014). The offer made specific reference to the principle in Calderbank v Calderbank [1975] 3 All ER 333.

7. The plaintiff submitted that he was not well at the time of the offer and was, indeed, unable to recall its having been brought to his attention. However, as at the date of the Calderbank letter, Mr Dennis was the solicitor on the record for the plaintiff. There is no proper basis for me to conclude that Mr Dennis did not receive or obtain the plaintiff’s instructions on the letter.

8. In these circumstances, having regard to the result of the proceedings (that there be judgment for the defendants), I was satisfied that it was appropriate that the defendants have the benefit of an indemnity costs order as a consequence of the offer. The offer to pay $40,000, and to forego what I accept were significant costs incurred to that date, amounted, in my view, to a sufficient compromise. I considered it to be appropriate that the costs order date from the day after the last day on which the offer was open for acceptance. Ms Polorotoff did not seek to be heard against that proposal.

Orders

9. The orders I made on 17 August 2015 were:

1. Dismiss the plaintiff’s notice of motion filed on 10 August 2015.

2. Order the plaintiff to pay the first and third defendants’ costs of the proceedings on an ordinary basis up to an including 22 August 2014 and on an indemnity basis thereafter.

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Decision last updated: 21 August 2015