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

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.
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

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.
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…

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.

Keep reading for free

Create a free CaseChat account to read Williamson v Carneys Lawyers (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] NSWSC 1175
Decision Date: 17 August 2015

CaseChat Overview and Summary

The case of Williamson v Carneys Lawyers (No 2) arose in the Supreme Court of New South Wales, where the plaintiff, Mr Williamson, sought an order for costs against the defendant, Carneys Lawyers, following a dispute over legal services rendered. The plaintiff alleged that the defendant had provided negligent legal advice, leading to financial losses. The defendant, in turn, argued that the plaintiff's claims were without merit and had acted in a manner that warranted a costs order against the plaintiff. The primary legal issue before the court was whether the order for costs should be deferred until the conclusion of fresh proceedings that the plaintiff intended to initiate, and if so, whether there was any basis for such a deferral. Additionally, the court needed to determine the appropriate basis for awarding costs, specifically whether the indemnity basis was suitable from the day after the expiry of a Calderbank offer made by the defendant.

The court held that there was no basis for deferring the order for costs until the conclusion of the fresh proceedings. The judge found that the plaintiff had not provided any compelling reason as to why the costs should be deferred, and that the circumstances did not present any question of principle that would warrant such a course of action. The court further determined that the costs should be awarded on an indemnity basis from the day after the expiry of the Calderbank offer. The Calderbank offer, which is a conditional offer to settle made in the hope of avoiding costs, had expired, and the plaintiff's subsequent litigation was found to be without merit. Therefore, the court ruled that the defendant was entitled to costs on an indemnity basis, reflecting the unmeritorious nature of the plaintiff's continued litigation.

In conclusion, the court found that the plaintiff's claims were without merit and that there was no justification for deferring the order for costs. The court ordered that the defendant was entitled to costs on an indemnity basis from the day after the expiry of the Calderbank offer. The plaintiff was thus required to pay the defendant's costs from that specified date, reflecting the unmeritorious nature of the plaintiff's continued litigation.

Orders