District Court New South Wales Medium Neutral Citation: Boyle v Coppock & Anor; Ek v Coppock & Anor [2014] NSWDC 244 Hearing dates: On the papers Decision date: 18 December 2014 Before: Levy SC DCJ Decision: 1.The defendants are to pay the costs of the plaintiffs of the defendants' motion filed on 19 September 2014 and which was dismissed on 3 October 2014; 2.Pursuant to s 341 of the Legal Profession Act 2004 those costs are to be assessed on an indemnity basis, and the assessment of those costs may proceed forthwith; 3.Liberty to apply on 7 days notice if further or other orders are required. Catchwords: COSTS - resolution of dispute concerning appropriate order for costs following dismissal of defendants' motion seeking to strike out the claims by the plaintiffs - whether defendants' motion constituted action that was in the circumstances not reasonably necessary for the advancement of the defendants' interests in the litigation or was reasonably likely to unnecessarily delay or complicate the determination of the claim Legislation Cited: Civil Procedure Act 2005, s 56 Legal Profession Act 2004, s 341 Cases Cited: Botany Bay Council v Latham (No 2) [2013] NSWCA 450 Leichhardt Municipal Council v Green [2004] NSWCA 341 Port Stephens Council v Theodorakis (No 2) [2006] NSWCA 143 Taheri v Vitek (No 2) [2014] NSWCA 344 Category: Interlocutory applications Parties: Georgia Grace Boyle (Plaintiff) Saskia Ellen Ek (Plaintiff) Andrew Coppock (First defendant) Grasso Consulting Engineers Pty Ltd (Second defendant) Representation: Mr P Beale (Plaintiffs) Mr S Keizer (Defendants) CMC Lawyers (Plaintiffs) Jonathan Newby (Defendants) File Number(s): 2013/167382 2013/167393 Publication restriction: None Judgment Costs 1On 3 October 2014, for reasons delivered ex-tempore, I made orders dismissing the defendants' motion filed on 19 September 2014 seeking to strike-out or to dismiss the plaintiffs' claims seeking damages for alleged negligence involving personal injury following a balcony collapse at the defendants' domestic premises. 2Following the dismissal of the defendants' motion, the parties requested the opportunity to make submissions on the appropriate consequential costs order. The parties provided written submissions. The parties agreed to the expedient course of having the costs issue determined on the papers. Competing arguments 3The plaintiffs seek an indemnity costs order and an order pursuant to s 341 of the Legal Profession Act 2004, arguing that the defendants' motion was "not reasonably necessary for the [applicants'] case": Port Stephens Council v Theodorakis (No 2) [2006] NSWCA 143, at [13]. 4The plaintiffs also submitted that an order for indemnity costs should be made because the defendants rejected Calderbank offers from the plaintiffs, each dated 30 September 2014, and which asserted that the orders sought by the defendants in the motion would not be ordered in the circumstances. 5In response, on behalf of the defendants, it was submitted that the defendants were not in a position to evaluate the plaintiffs' Calderbank offers because they did not adequately draw attention to the flaw in the defendants' motion, only the effect of that flaw. I accept that submission. Calderbank offer 6The terms of the plaintiffs' Calderbank offers required capitulation by the defendants, without any element of compromise: Leichhardt Municipal Council v Green [2004] NSWCA 341, at [39]. In those circumstances, an indemnity costs order is generally inappropriate: Botany Bay Council v Latham (No 2) [2013] NSWCA 450, at [12]; Taheri v Vitek (No 2) [2014] NSWCA 344. I therefore decline to order indemnity costs as a consequence of the defendants' non-acceptance of the plaintiffs' Calderbank offers. s 341 of the Legal Profession Act 2004 7In my view, the timing of and the basis for the defendants' strike-out motion was entirely misconceived. It was misconceived according to the content of the defendants' own documents. Furthermore, as to timing, the evidence gathering by the plaintiffs was not yet complete or closed off by case management orders at the time the defendants' motion was filed: Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346. 8The motion filed by the defendants was not aimed at seeking to identify the real issues for determination in the proceedings: s 56 of the Civil Procedure Act 2005. The motion had no prospects of success, as was evident from the defendants' own documents upon which the motion was based. 9The basis of the plaintiffs' claim for indemnity costs is s 341 of the Legal Profession Act 2004, which provides: 341 Court may order certain legal services to be excluded from maximum costs limitation A court hearing a claim for personal injury damages may by order exclude from the operation of this Division legal services provided to a party to the claim if the court is satisfied that the legal services were provided in response to any action on the claim by or on behalf of the other party to the claim that in the circumstances was not reasonably necessary for the advancement of that party's case or was intended or reasonably likely to unnecessarily delay or complicate determination of the claim. 10The reason the plaintiffs seek indemnity costs in this instance is that in a personal injury damages claim, a plaintiff's ability to recover costs from a defendant is limited to a capped or ceiling amount, unless otherwise ordered. 11In this case, the plaintiffs argue that the defendants' motion was destined to delay or complicate the determination of the claim, and render it needlessly more costly, contrary to the requirements of s 56 of the Civil Procedure Act 2005. It therefore disadvantaged the plaintiffs as to costs in the context of the limited costs a plaintiff would ordinarily recover in such proceedings. 12Whilst that may not have been the intended effect of the defendants' motion, in my view, it had that effect. In those circumstances, where it is possible and appropriate to remedy a disadvantage arising in that way by making an order for costs, this should occur. Orders 13I therefore make the following orders: (1)The defendants are to pay the costs of the plaintiffs of the defendants' motion filed on 19 September 2014 and which was dismissed on 3 October 2014; (2)Pursuant to s 341 of the Legal Profession Act 2004 those costs are to be assessed on an indemnity basis, and the assessment of those costs may proceed forthwith; (3)Liberty to apply on 7 days notice if further or other orders are required. ********** 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: 19 December 2014