CHITTS v HAMIED (No. 2) [2023] NSWDC 226

District Court New South Wales

Medium Neutral Citation: CHITTS v HAMIED (No. 2) [2023] NSWDC 226 Hearing dates: 16 June 2023 Date of orders: 28 June 2023 Decision date: 28 June 2023 Jurisdiction: Civil Before: Lerve DCJ Decision: The applicant defendant to pay the costs of and incidental to the Notice of Motion. Catchwords: COSTS – 'indulgence principle' – disentitling behaviour - whether letter from defendant to plaintiff constituted a Calderbank offer Legislation Cited: Uniform Civil Procedure Rules (UCPR) Cases Cited: Chint Australasia Pty Ltd v Cosmoluse Pty Ltd [2008] NSWSC 768 Fordham v Fordyce [2007] NSWCA 129 Holt v Wynter [2000] NSWCA 143 Judd v Warwick (2007) 6 CDLR 243 Chitts v Hamied [2023] NSWDC 188 Category: Costs Parties: Mark Anthony CHITTS Sadek HAMIED Representation: Counsel: Mr N Hogan (Applicant/Defendant) Mr M Inglis (Respondent/Plaintiff)

Solicitors: Avant Law (Applicant/Defendant) Commins Hendriks Solicitors (Respondent/Plaintiff) File Number(s): 2021/289113 Publication restriction: No

Judgment 1. On 5 June 2023 before the Court embarked on the hearing of a criminal trial, four civil Notices of Motion were heard. Three of those matters were resolved by Consent Orders. This matter however proceeded to hearing over about two hours. On 9 June 2023 I gave judgment on the Notice of Motion. The Solicitor appearing for the Defendant for the purposes of taking the judgment indicated that there was an issue as to costs. This second judgment in the matter relates to the issue of costs of the Motion. 2. The substantive matter is one that relates to a claim for professional negligence, and in particular a claim by the plaintiff that the defendant, who at the relevant time was the plaintiff's treating general practitioner, was negligent in failing to properly diagnose and treat a compression fracture to the lower back. 3. The Notice of Motion involved an application by the defendant to seek leave pursuant to Part 31.28(4) of the Uniform Civil Procedure Rules (UCPR) to rely on two expert's reports which had not been served in a timely fashion. To say that those reports had not been served in a timely fashion was very much a euphemism in this case. The procedural history is set out in the judgment of 9 June 2023, Chitts v Hamied [2023] NSWDC 188. 4. For reasons set out in the judgment of 9 June 2023 the defendant was granted leave to rely on those experts' reports. However, I also made clear that because of the failures in the office of the solicitor appearing for the defendant in all the circumstances the defendant should bear the costs of the Motion. 5. The defendant maintains that because of what is purported to be a Calderbank Letter of 1 June 2023 the defendant maintains that the plaintiff should bear the costs of the Motion, or in the alternative that each party pay their own costs. The plaintiff maintains that the order for costs should be the one I proposed in my reasons of 9 June 2023.