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Ziliotto v Dr Hakim (No 2)

Ziliotto v Dr Hakim (No 2)

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Case Copied 19 September 2012 26 min read

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Supreme Court

New South Wales

Medium Neutral Citation: Ziliotto v Dr Hakim (No. 2) [2012] NSWSC 1079
Hearing dates: 3 September 2012
Decision date: 19 September 2012
Jurisdiction: Common Law
Before: Davies J
Decision:
I vary the costs order made on 24 July 2012 and order as follows:
The Defendant is to pay the Plaintiff's costs on an ordinary basis up to and including 7 April 2011 and thereafter the Plaintiff is to pay the Defendant's costs on an indemnity basis.

Catchwords: COSTS - Offer of Compromise - Offer provides for payment of a specified amount "plus costs as agreed or assessed" - whether the Offer complies with r 20.26 UCPR - conflicting decisions of Court of Appeal - whether Offer conflicts with costs rule - Offer complies with r 20.26 - adjournment - Defendant entitled to costs thrown away by reason of the adjournment - scope of "costs thrown away".
Legislation Cited: Supreme Court (General Civil Procedure) Rules 2005 (Vic)
Uniform Civil Procedure Rules 2005
Cases Cited: Ambulance Service of NSW v Worley (No 2) [2006] NSWCA 236; (2006) 67 NSWLR Associated Confectionery (Aust) Ltd v Mineral and Chemical Traders Pty Ltd (1991) 25 NSWLR 349
Balta v Sew 'N' Save Pty Ltd (No 1) (1980) 28 SASR 385
Caine v Lumley General Insurance Ltd (No. 2) [2008] NSWCA 109
Dean v Stockland Property Management Pty Ltd (No. 2) [2010] NSWCA 141
Edelman v Badower [2010] VSC 427
Erect Safe Scaffolding (Australia) Pty Ltd v Sutton & Anor (No 2) [2008] NSWCA 289
In the matter of Cheal Industries Pty Ltd - Fitzpatrick v Cheal [2012] NSWSC 932
Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd (No 2) [2008] NSWCA 85,
Macquarie Radio Network Pty Ltd v Arthur Dent (No 2) [2007] NSWCA 339
Maitland Hospital v Fisher (No.2) [1992] 27 NSWLR 721
Old v McInnes and Hodgkinson [2011] NSWCA 410
Pritchard v Trius Constructions Pty Limited [No 2] [2011] NSWSC 1114
Rail Corporation NSW v Vero Insurance Ltd (No.2) [2012] NSWSC 926
San v Rumble (No 2) 2007] NSWCA 259; 48 MVR 492,
South Eastern Sydney Area Health Service v King [2006] NSWCA 2
The Nominal Defendant v Hawkins [2011] NSWCA 93; (2011) 58 MVR 362
The Uniting Church v Takacs (No 2) [2008] NSWCA 172
Trustee for the Salvation Army (NSW) Property Trust v Becker (No. 2) [2007] NSWCA 194
Vieira v O'Shea (No 2) [2012] NSWCA 121
Texts Cited: Dal Pont GE, Law of Costs, 2nd Ed (2009) LexisNexis Butterworths, Australia
Category: Costs
Parties: Stella Maris Ziliotto (Plaintiff)
Dr Claude Hakim (Defendant)
Representation: Counsel:
B Gross QC & BCA Bradley (Plaintiff)
M Windsor SC & F Lalic (Defendant)
Solicitors:
P K Simpson & Co (Plaintiff)
Avant Law Pty Ltd (Defendant)

File Number(s): 2009/297666

Judgment

On 24 July 2012 I gave judgment for the Plaintiff in the sum of $1,373,035 and ordered that the Defendant pay the Plaintiff's costs.

On 7 April 2011 those acting for Dr Hakim sent a letter to 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.

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Details

Case: [2012] NSWSC 1079
Decision Date: 19 September 2012

CaseChat Overview and Summary

In the case of Ziliotto v Dr Hakim (No 2), the parties were engaged in a dispute that had been brought before the court. The nature of the dispute involved an offer of compromise made by the defendant, Dr Hakim, to the plaintiff, Mr Ziliotto. The offer specified payment of a certain amount "plus costs as agreed or assessed." The court was required to determine whether this offer complied with rule 20.26 of the Uniform Civil Procedure Rules (UCPR). The court was also required to consider whether the offer conflicted with the relevant costs rule, as well as the appropriate scope of "costs thrown away" under the circumstances.

The primary legal issues before the court were the interpretation of rule 20.26 UCPR and whether the defendant's offer complied with this rule. Additionally, the court had to consider the conflicting decisions of the Court of Appeal regarding the scope of "costs thrown away." The court needed to decide if the offer conflicted with the costs rule and whether the defendant was entitled to costs thrown away due to an adjournment.

In determining the matter, the court found that the defendant's offer complied with rule 20.26 UCPR. The court held that the offer did not conflict with the relevant costs rule. Furthermore, the court clarified that the scope of "costs thrown away" should include any costs that would have been recoverable had the offer not been made, as well as any costs incurred in connection with the offer that would not have been incurred had the offer not been made. In this instance, the defendant was entitled to costs thrown away by reason of the adjournment, which included costs that would have been recoverable if the offer had been accepted and costs incurred in connection with the offer.

In conclusion, the court determined that the defendant's offer complied with rule 20.26 UCPR, did not conflict with the relevant costs rule, and granted the defendant costs thrown away due to the adjournment.

Orders