Foong v Ghaly; Foong v McLellan (No. 2) [2017] NSWDC 343

District Court New South Wales

Medium Neutral Citation: Foong v Ghaly; Foong v McLellan (No. 2) [2017] NSWDC 343 Hearing dates: 5 December 2017 Date of orders: 05 December 2017 Decision date: 12 December 2017 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Grant leave to Mr Kin Lap Chow of Gerard Malouf & Partners to appear on that firm's behalf in relation to the application for costs. (2) Grant leave to the plaintiff to file submissions in court notwithstanding the fact that they were only provided to the defendants this morning. (3) Grant leave to Mr Chow to file affidavits in court notwithstanding the fact that they were only provided to the defendants this morning. (4) Vary order (3) of my judgment of 3 November 2017 to order: (a) Each party pay his or her own costs up until 10 March 2014. (b) The plaintiff pay each of the defendants' costs from 11 March 2014 onwards on an indemnity basis. Catchwords: COSTS – plaintiff awarded nominal damages in personal injury proceedings – application for indemnity costs based on Calderbank offer – held not reasonable for the plaintiff to have refused to accept the offer – indemnity costs order made for the period following the Calderbank offer - application by plaintiff's former solicitor for a gross sum costs order for work performed prior to the Calderbank offer – whether reasonable to commence proceedings in the District Court resulting in nominal damages – whether costs should follow the event where an award is made for nominal damages – no entitlement by plaintiff to any costs order by reason of s 60 Civil Procedure Act 2005 (NSW) Legislation Cited: Civil Procedure Act 2005 (NSW), ss 60 and 98 Uniform Civil Procedure Rules 2005 (NSW), rr 42.2 and 42.5 Cases Cited: Beaumont v Greathead (1846) 2 CB 494 Calderbank v Calderbank [1975] 3 WLR 586 Crossman v Sheahan (No 2) [2016] NSWCA 351 Foong v Ghaly; Foong v McLellan [2017] NSWDC 303 Treloar Constructions Pty Ltd v McMillan (No 2) [2017] NSWCA 146 Whitney v Dream Developments Pty Ltd (2013) 84 NSWLR 311 Category: Costs Parties: Plaintiff: Yena Foong Defendant (in 2014/115934): Osama Wadea Ghaly Defendant (in 2014/200147): Diane Frances McLellan Representation: Plaintiff's former solicitor: Mr K L Chow (Gerard Malouf & Partners) Defendants: Ms L Nicholas (Moray & Agnew) File Number(s): 2014/115934; 2014/200147 Publication restriction: None