Supreme Court New South Wales Medium Neutral Citation: Wittenberg v Gillis [2022] NSWSC 1163 Hearing dates: 26 August 2022 Date of orders: 26 August 2022 Decision date: 26 August 2022 Jurisdiction: Common Law Before: Campbell J Decision: (1) Vary order two, pronounced on the 25 March 2022, so it reads: "2. The plaintiff to pay the defendant's costs, up to and including 5PM on 24 March 2019, on an ordinary basis, and thereafter on an indemnity basis, as agreed or assessed." (2) The plaintiff to pay the defendant's costs of the application for a special costs order. Catchwords: CIVIL PROCEDURE – costs – application for a special order as to costs – indemnity costs sought in circumstances where offer to compromise made – application of r 42.15A Uniform Civil Procedure Rules 2005 (NSW) Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 42.15A Cases Cited: Calderbank v Calderbank [1976] Fam 93 Texts Cited: Nil Category: Consequential orders Parties: Corey Wittenberg (Plaintiff) Michael Joseph Gillis (First Defendant) Gana Holdings Pty Ltd (Second Defendant) Gana Holdings Pty Ltd as trustee for Gana Holdings Trust trading as Gillis Delaney Lawyers (Third Defendant Representation: Counsel: No appearance (Plaintiff) T. Harris-Roxas (Defendant) File Number(s): 2017/346984 Publication restriction: Nil extempore Judgment – (revised) 1. This is the fourth application for a special cost order in the five matters, the subject of claims for professional negligence against the defendant legal practice, arising out of advice given to each plaintiff in relation to offers to compromise made in Federal Court proceedings, in or about December 2011. I handed down my judgment in Mr Wittenberg's case on 25 March 2022, my orders were: "Judgment for each defendant against the plaintiff; The plaintiff to pay the defendant's cost; Liberty to apply, at a date to be arranged with my associate." 1. By notice of motion filed on 8 April 2022, the defendant sought a variation of the costs order made seeking an order for indemnity costs, after the date upon which an offer of compromise took effect. Alternatively, the offer was relied upon, pursuant to the principles mostly associated with the decision in Calderbank v Calderbank [1976] Fam 93. Although Mr Wittenberg was unsuccessful in his case, I assessed his damages on a contingent basis as totalling $193,725 net of the additional costs payable to legal practice, acting on behalf of Mr Wittenberg after the rejection of the offer to compromise in the Federal Court (see judgment [146]). 2. The offer of compromise of 24 July in this case was the sum of $320,000 plus costs, on the ordinary basis. Even allowing for the unspecified amount of additional costs payable to the legal practice, it's quite clear that the offer made was a genuine attempt to compromise the case. I am also satisfied that, in form, the offer is an offer of compromise in conformity with r 20.26, Uniform Civil Procedure Rules 2005 (NSW). 3. I have earlier today dealt with three other cases in which the same issues have arisen. The first of those judgments was in the matter of Lawson v Gana Holdings. There, I set out the operative provisions so far as need be, and the relevant principles informing the exercise of the discretion to make a special costs order in the nature of an order for indemnity costs. I will not repeat those matters in this judgment, but this judgment pre-supposes familiarity with those matters. As in other cases, the offer of compromise was subject to a condition which preserved the legal practice's rights and entitlements to enforce any judgment registered in its favour, arising out of any certificate of determination issued by the Supreme Court of NSW, reflecting the result of a cost assessment in matter number 2016/266357. 4. The precise terms of that condition are set out in the other judgments. It was this condition which was determinative in my decision in Mr Lawson's case, but as Ms Harris-Roxas of counsel has submitted, the facts in the present case are materially different. As in Mr Moore's and Ms Murphy's cases, Mr Wittenberg and those advising him felt at no disadvantage in considering the offer of compromise because of the specification of the condition to which I've made reference. Indeed, a letter of rejection and counter-offer was sent to the defendant's solicitors on 31 July 2019. The counter-offer was in the sum of $875,000, exclusive of and in addition to the plaintiff's costs in the proceedings. 5. As in Mr Moore's and Ms Murphy's cases, Mr Wittenberg felt able to deal with the offer of compromise, and condition (e), by offering to pay the sum of $375,000 to the law firm, in respect of the additional unpaid costs of the Federal Court proceedings, subject to a deed of release being provided for his benefit, releasing him from any other liability at the suit of the legal practice in relation to the Federal Court proceedings. Given this difference from Mr Lawson's case, the presumptive effect of r 42.15A should be given effect to. I am not satisfied that I should otherwise order in this case, given that from the standpoint of Mr Wittenberg, the stipulation of condition (e) did not render him at a disadvantage in considering the offer. On the contrary, he was able to engage with condition (e) and propose counter-provisions to deal with it to his satisfaction. This being so, I am not satisfied that there is any rational basis to order otherwise. 6. My orders are: 1. Vary order two, pronounced on the 25 March 2022, so it reads: "2. The plaintiff to pay the defendant's costs, up to and including 5PM on 24 March 2019, on an ordinary basis, and thereafter on an indemnity basis, as agreed or assessed." 1. The plaintiff to pay the defendant's costs of the application for a special costs order. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 August 2022