Ada Evans Chambers Pty Limited v Santisi (No. 2)

[2014] NSWSC 592

Supreme Court

New South Wales

Medium Neutral Citation:	Ada Evans Chambers Pty Limited v Santisi (No. 2) [2014] NSWSC 592
Hearing dates:	On the papers
Decision date:	15 May 2014
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	(1) Order the plaintiff to pay the defendant's costs of the proceedings on an ordinary basis up to and including 1 May 2014 and on an indemnity basis thereafter.
Catchwords:	COSTS - costs to be paid on indemnity basis - unreasonable for plaintiff to reject defendant's open offer to walk away from proceedings and not seek costs
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 98
Cases Cited:	Ada Evans Chambers Pty Limited v Santisi [2014] NSWSC 538
Category:	Costs
Parties:	Ada Evans Chambers Pty Ltd (Plaintiff/Respondent) Frank Santisi (Defendant/Applicant)
Representation:	Counsel: R Freeman (Plaintiff/Respondent) SJ Burchett (Defendant/Applicant) Solicitors: Adams & Co Lawyers (Plaintiff/Respondent) Denison Toyer (Defendant/Applicant)
File Number(s):	2014/13789
Publication restriction:	Nil

Judgment

1. On 6 May 2014 I dismissed the plaintiff's summons summarily on the defendant's application: Ada Evans Chambers Pty Limited v Santisi [2014] NSWSC 538. The defendant seeks an order that his costs be paid on an indemnity basis from and including 1 May 2014. The basis for the application is that the defendant made an open offer by letter on that day that he would not seek costs of the proceedings if the plaintiff agreed to withdraw the summons or to its dismissal.

1. The plaintiff resists the order on the following two bases:

"There was a serious matter for review where it should not have been a review of a disputed fact but a question of law being whether or not the defendant was estopped from asserting that he was retained, instructed or briefed, to appear as Counsel."

". . . the position as to self-represented Counsel being awarded counsel fees for appearing in their own matter is a matter which there was adequate support in decided cases that Counsel is not entitled to such fees."

1. For the reasons given in the principal judgment, leave to appeal was required. I dismissed the summons because I did not consider that there was any real prospect that leave would be granted in respect of any ground. The matters raised by the plaintiff as to why I ought not order indemnity costs were matters that I have addressed in the principal judgment.

1. Costs are in the discretion of the Court: s 98 of the Civil Procedure Act2005 (NSW). I consider that the defendant's open offer on 1 May 2014 was reasonable and ought be rewarded. It is desirable that parties attempt to compromise proceedings rather than to incur unnecessary costs.

1. There was a substantial element of compromise in the defendant's open offer of 1 May 2014. The matter had already been before the Court for directions and correspondence had passed between the solicitors. The defendant's motion was to be heard the following day and I infer that counsel would have been briefed to appear at the hearing of the motion. It was, in my view, unreasonable for the plaintiff not to accept the defendant's offer to walk away. As the offer was made on 1 May 2014 I consider that it is appropriate that the order for indemnity costs apply to 2 May 2014, but not include 1 May 2014 as it was the day of the offer.

Order

1. I make the following order:

(1)   Order the plaintiff to pay the defendant's costs of the proceedings on an ordinary basis up to and including 1 May 2014 and on an indemnity basis thereafter.

**********