Ozkan Erten v Kellogg Superannuation Pty Limited

Basis of defences 17The defendants relied in written submissions provided in support of their defences to the claims that were to be heard on 14 October 2013, that the date at which, as a matter of legal principle, it should be decided whether the plaintiff satisfied the TPD criteria was six months after the date when he ceased employment, which in this case was 27 April 2011: see Erzurumlu v Kellogg Superannuation Pty Limited [2013] NSWSC 1115 at [52]-[55]; Hannover Life Re of Australasia Ltd v Dargan [2013] NSWCA 57 at [33] and Fernance v Wreckair Pty Ltd & Anor (No 2) (1992) 43 IR 300 at 329. 18The issue in the proceedings was not only whether, on the basis of the plaintiff's physical condition and the available medical evidence, the defendants should have accepted his claim for a TPD payment. There was an issue as to whether the plaintiff was conducting a business that traded as "Auto King" at the time he claimed to be totally and permanently disabled. This issue emerged in the second defendant's amended defence, where in the particulars to par 17, it was alleged that the plaintiff was in breach of his duty of good faith and fair dealing to the second defendant. The second defendant alleged that the plaintiff had commenced the proceedings without first complying with a request that he provide a statutory declaration providing full details of the plaintiff's involvement in the business trading as "Auto King". It appears that the defendants in the course of the preparation of the defence for the hearing obtained evidence on subpoena which tended to support a claim that the plaintiff was earning an income through conducting the business "Auto King" at a time when he claimed to be totally and permanently disabled. A Business Name Extract established that the plaintiff had on 17 November 2000 registered the business name "Auto King" for an automotive parts and accessories retail business that commenced on 1 February 2000 (Exhibit 1). The plaintiff on 24 April 2002 applied to Pepper Homeloans for a loan of $247,854 to purchase an investment property (Exhibit 2). The plaintiff declared that he was self-employed in an automotive spares retail business under the name "Auto King", and that he had been so employed for two years. The plaintiff gave his monthly gross income as being $48,312, by which he presumably meant his annual income. In a declaration of income and affordability dated 22 May 2002, that was produced by Pepper Homeloans on subpoena, the plaintiff stated that his current gross income was $49,000 per annum, and that he had been self employed in "auto parts retail" for two years (Exhibit 3).

First defendant's evidence 19At the hearing on 17 October 2013 the first defendant relied upon an affidavit of Veronica Chapman affirmed on 16 October 2013. 20Ms Chapman deposed to the first defendant serving on the plaintiff offers of compromise dated 19 December 2012 and 2 September 2013. Each offer was expressed to be made in accordance with UCPR r 20.26. The offer was, in substance, that if the plaintiff agreed to a verdict and judgment for the first defendant on the amended statement of claim, the first defendant would agree that each party would pay their own costs of the proceedings. The first offer was stated to be open for 28 days, and the second for 14 days. 21Each offer was delivered under a covering letter which explained in detail the basis upon which the first defendant claimed that it was appropriate and beneficial to the plaintiff that the proceedings be dismissed on the basis that each party pay their own costs. It is not necessary that I set out the text of the covering letters in detail. The letters made observations on the medical issues, and also referred to the evidence which tends to establish that the plaintiff was not totally and permanently disabled at the relevant time, some of which evidence I have outlined above. 22In each case the covering letter advised that the offer of compromise should be taken as having been made in accordance with the principles set out in Calderbank v Calderbank [1976] Fam. 93. 23Ms Chapman also listed the tax invoices that have been sent by her firm to the first defendant, which total $31,101. Ms Chapman estimated that the amount of work in progress was $11,788.80, counsel's fees to date were $19,300, and that her firm and counsel expected that the costs of dealing with the notice of motion would be $3000 and $2000 respectively. The total amount would be $67,189.80 (excluding GST). 24Ms Chapman gave evidence based on her experience as a solicitor that the likely recovery of costs on an assessment of costs on the ordinary basis would be 75%. Ms Chapman said that in her experience the likely recovery on an assessment of costs on an indemnity basis would be 95%. In providing these estimates Ms Chapman agreed with the opinions expressed by the solicitor for the second defendant, to whose evidence I will come shortly. 25On Ms Chapman's calculation, if the Court orders the plaintiff to pay a gross sum for costs on the ordinary basis the amount payable will be $50,392.35. 26Ms Chapman said in effect that, if the court accepts that the 19 December 2012 offer of compromise was effective, the first defendant's costs on the ordinary basis up to 19 December 2012 would be $18,758.70 (75% of $25,011.60) and then from 20 December 2012 to 17 October 2013 the costs would be $40,069.29 (95% of $42,178.20). The total amount would be $58,827.99. 27According to Ms Chapman, if instead the court accepts the second offer of compromise was effective, the amounts calculated on the same basis but with changed dates would be $25,077.60 and $32,065.35. In this case the total would be $57,142.95. 28The first defendant also relied upon an affidavit sworn by Suzanne Propoggia on 9 October 2013. The affidavit established in detail the attempts made by the first defendant to ensure that the matter was made ready for hearing following the receipt of Mr Joukhador's advice that he had ceased to act for the plaintiff. The affidavit annexed a copy of an affidavit sworn by a process server, Mr Mark Slater, which establishes that on 8 October 2013, in the course of trying to serve the plaintiff personally with a letter advising the plaintiff of the directions hearing to be held on 9 October 2013, Mr Slater had a telephone conversation with the plaintiff. The plaintiff declined to give Mr Slater his current address. The plaintiff advised Mr Slater that he had an appointment to confer with Mr Joukhador at 2 PM that day. 29Ms Propoggia annexed a bankruptcy search that establishes that the plaintiff is an undischarged bankrupt under a sequestration order entered on 24 July 2007.

Second defendant's evidence 30The second defendant relied upon two affidavits of Michael Iacuzzi sworn on 16 October 2013. The principal affidavit annexed offers of compromise dated 8 August 2012 and 12 March 2013 that Mr Iacuzzi sent to Mr Joukhador. The second defendant offered to compromise the proceedings in each case on the same terms, in substance, as did the first defendant, putting aside one difference in the acceptance period. No reasons were given as to why the plaintiff should accept the first offer. It was not expressed to be a Calderbank offer. The second offer was sent with a letter that explained the basis upon which the offer was made. The explanation was somewhat less detailed than those provided by the first defendant. The letter explained that the offer should be treated as a Calderbank offer. 31Mr Iacuzzi expressed the same opinion, as did Ms Chapman, that on an assessment of costs an average of approximately 75% was generally allowed in relation to costs assessed on the ordinary basis, and 95% in relation to indemnity costs. 32Mr Iacuzzi provided alternative cost estimates, in the same form as Ms Chapman, in relation to the two offers of compromise. The total costs estimated for the second defendant until the end of the costs application is $146,373.08. If the court only orders costs to be paid on the ordinary basis then the specified gross sum would be $109,779.82. If the Court orders the plaintiff to pay indemnity costs following the first offer of compromise the gross sum would be $129,324.55. If the Court acts upon the basis of the second offer of compromise the amount would be $120,349.70. 33Mr Iacuzzi implicitly recognised that the second defendant's costs incurred were relatively high, as he explained in par 15 that the interlocutory processes in the proceedings were somewhat drawn out, and for this purpose he annexed the chronological summary that I have referred to above. He also explained that it was necessary for the second defendant to issue a substantial number of subpoenas, and to inspect and analyse the documents produced, going to the operation of the plaintiff's "Auto King" business. 34The second affidavit sworn by Mr Iacuzzi gave evidence of the second defendant's efforts to comply with the directions that I made on the 14 October 2013. 35The chronology of the interlocutory proceedings in this matter shows that the plaintiff was ordered to pay the defendants' costs of matters that were before the court on 11 July 2012, 17 August 2012 and 5 February 2013.

Consideration 36The defendants are clearly entitled to orders that the plaintiff pay their costs of the proceedings on the ordinary basis. The first question is whether the court should order that the costs be paid on an indemnity basis for any period, and if so from what date. The second question is whether the court should fix as a gross sum the amount of costs that the plaintiff should be ordered to pay, and if so what those sums should be. I will defer considering the existing cost orders until after I have addressed these questions. 37All of the offers of compromise were on terms that a verdict, or a verdict and judgment, would be entered in favour of the relevant defendant. The costs orders that were offered were in chronological and defendant order: (a) "each of the plaintiff and the first defendant to pay their own costs of the proceedings"; (b) "no order as to costs on the amended statement of claim"; (c) "and the parties bear their own costs"; and (d) "and the parties bear their own costs". 38As all relevant offers were on terms that the plaintiff would capitulate, and the only benefit he would gain is that he would be preserved from the possibility of having to pay the defendants' costs, it is necessary to consider whether the offers involved a true compromise: see Ritchie's Uniform Civil Procedure NSW [20.26.10] and [42.13.13] and the cases there cited. Specifically, the question is whether the evidence suggests that the plaintiff's claim was so lacking in merit that it is fair for the court to treat the defendants' offer to abandon their own claims for costs as a real compromise. 39The first defendant's first offer of compromise was served shortly after the plaintiff served his amended statement of claim and the first defendant responded with its amended defence. The first defendant had incurred costs to that date of approximately $20,000. As the plaintiff's claim was dismissed because he did not appear to contest it, it is difficult for the court to judge whether as at 19 December 2012 the plaintiff should reasonably have considered his position to be hopeless and to have accepted the first defendant's offer. At that stage the value of the first defendant's offer to the plaintiff was about $15,000 (75% times $20,000). The court does not have on this costs application evidence of when the subpoenas were returned which provided the defendants' evidence of the earnings of the plaintiff at the time he claimed to be totally and permanently disabled (although it must be acknowledged that the first defendant provided relatively specific justification for the first offer of compromise). On balance I have reached the conclusion that it will not be appropriate to treat the first defendant's first offer of compromise as an effective offer of compromise under rule 20.26 or an effective Calderbank offer, given that it required the plaintiff to capitulate. The second defendant's first offer of compromise made on 8 August 2012 was made some four months before the first offer made by the first defendant. I am not satisfied that this offer was effective. 40However, I have decided that the defendants' second offers of compromise should be treated as effective under rule 20.26 and as Calderbank offers. By the time each of those offers was made it should have been apparent to the plaintiff that there was an extremely high likelihood that his claim would fail totally, and he would be ordered to pay the defendants' costs. The first defendant's costs were about $31,000 when it made its second offer. By the time of the second defendant's second offer it had incurred costs of approximately $85,000. 41I propose to order that the plaintiff pay each defendant's costs on the ordinary basis up to the date of its second offer of compromise, and thereafter that he pay the costs on an indemnity basis. 42As each of the three existing cost orders made against the plaintiff was made before the dates of the second offers of compromise, costs will be payable on the ordinary basis in relation to those orders. 43I have decided that it is appropriate in this case for the court to order the plaintiff to pay the defendants' costs on a gross sum basis under s 98(4)(c) of the Civil Procedure Act 2005. The present proceedings have not been lengthy and complex, but there is a substantial "likelihood that the additional costs of formal assessment would disadvantage the successful party because of the likely inability of the unsuccessful party to discharge the costs liability in any event": see Hamod v State of New South Wales and Anor [2011] NSWCA 375 at [817] per Beazley JA, Giles and Whealy JJA agreeing. I propose to apply the legal principles set out by Beazley JA at [813]-[820]. 44In the present case the exercise of assessing the defendants' costs is likely to be time-consuming and wasteful if the plaintiff contests it. As the plaintiff is an undischarged bankrupt, the likelihood that the defendants will be paid their costs is low, and the costs of the assessment would almost certainly be wasted. In the manner described above, the plaintiff did not appear on the hearing of his claim or the hearing of the notices of motion. On the balance of probabilities the plaintiff had notice of the present application, and has not availed himself of the opportunity to contest the defendants' claims. Nonetheless it is true that the court has not had the benefit of any submissions by the plaintiff concerning the reasonableness of the costs incurred by the defendants. The court only has lists of the tax invoices delivered by the defendants' solicitors, and statements as to work in progress and additional expected costs in round sums. The solicitors for the defendants have given evidence that in their view the costs are reasonable. The evidence before the court does not permit me to reject the defendants' evidence, nor does it, however, enable me to make any assessment of the reasonableness of the costs by reference to the issues in the case. 45As Beazley JA said in Hamod at [814]: "The courts have typically applied a discount in assessing costs on a gross sum basis". The assessment may necessarily involve "an impressionistic discount": see Ritchie at [s 98.65]. 46I have decided that, in all of the circumstances, and recognising that the award of a gross sum should save each defendant significant costs and trouble by avoiding the assessment process, I should calculate the gross sums by accepting the evidence of the defendants' solicitors as to the usual discount on an assessment of costs, being 25% for costs payable on the ordinary basis and 5% for costs payable on an indemnity basis, and in each case apply a further discount of 10%. That further discount is necessarily somewhat arbitrary, but it is intended to achieve a reasonably fair result given that there has been no scrutiny of the individual tax invoices or estimates of additional legal costs. 47I therefore make the following orders: (1)Order the plaintiff to pay the first defendant's costs of the proceedings (including for existing costs orders) in the gross sum of $51,429. (2)Order the plaintiff to pay the second defendant's costs of the proceedings (including for existing costs orders) in the gross sum of $108,315.

Procedural Chronology 24 July 2007: Plaintiff becomes bankrupt. 7 October 2011: Statement of Claim filed 27 October 2011: Second defendant requests further and better particulars of the Statement of Claim. 4 November 2011: Initial directions hearing. Adjourned until 1 December 2011 to allow the plaintiff's solicitor to contact the Trustee in bankruptcy. 1 December 2011: Directions hearing. Adjourned until 8 December 2011 to allow the plaintiff's Trustee in bankruptcy to obtain advice. 8 December 2011: Directions hearing. Adjourned until 15 February 2012 to allow the plaintiff's trustee in bankruptcy to consider the matter. 15 February 2012: Directions hearing. Court made the following orders:

1. The Plaintiff to respond to the Defendants' request for further and better particulars by 22 February 2012.
2. The Defendants to file and serve defences by 9 March 2012.
3. The parties to exchange categories of documents for discovery on or before 23 March 2012.
4. The parties to provide verified discovery on or before 13 April 2012.
5. The parties to request copies or inspect any discovered documents on or before 27 April 2012.
6. The Plaintiff to complete service of evidence on which he will rely at hearing by 25 May 2012.
7. The Defendants to complete service of evidence on which they will rely at hearing by 22 June 2012.
8. The Plaintiff to serve any evidence in reply by 6 July 2012.
9. Matter listed for further directions on 11 July 2012. 8 March 2012: Second defendant's Defence filed 1 June 2012: First Defendant's Defence filed 11 July 2012: Directions hearing. The plaintiff had not complied with order 1 on the last occasion. Court made the following orders:
10. The plaintiff to respond to the defendants' request for further and better particulars of the Statement of Claim by 25 July 2012.
11. The defendants to file and serve any Amended Defences by 8 August 2012.
12. The plaintiff to complete service of evidence by 5 September 2012.
13. The defendants to complete service of evidence by 3 October 2012.
14. The plaintiff to serve any evidence in reply by 17 October 2012.
15. Listed for further directions on 17 October 2012.
16. The plaintiff to pay the first defendant's and second defendant's costs of the directions hearing on 11 July 2012. 9 August 2012: Second defendant files Notice of Motion (dismissal for failure to respond to request for particulars). Motion returnable on 17 August 2012. 9 August 2012: Plaintiff responded to the second defendant's request for further and better particulars (requested on 27 October 2011). 17 August 2012: Second defendant's Notice of Motion. By consent, the Court made the following orders:
17. The plaintiff to provide a complete response to the second defendant's request for further and better particulars dated 15 August 2012 by 31 August 2012.
18. The first defendant to request that the plaintiff provide further and better particulars by 31 August 2012.
19. The plaintiff to respond to the first defendant's request for further and better particulars by 14 September 2012.
20. The defendants to file any Amended Defences on or before 28 September 2012.
21. Matter listed for a further directions hearing on 5 October 2012.
22. If the plaintiff is in default of orders 1 or 3 above, an affidavit by the plaintiff's solicitor explaining the reason for the default must be filed and served 3 clear days before the next directions hearing.
23. The plaintiff to pay the defendants' cost of the Notice of Motion filed 9 August 2012.
24. Liberty to apply on 3 days' notice. 24 September 2012: Second defendant's Amended Defence filed. 5 October 2012: Directions hearing. Court made the following orders:
25. The plaintiff to respond to the first defendant's request for further and better particulars of the Statement of Claim dated 19 September 2012 by 12 October 2012.
26. The first defendant to file and serve any Amended Defence by 26 October 2012.
27. Listed for further directions on 2 November 2012. 2 November 2012: Directions hearing. Court made the following orders:
28. Plaintiff to circulate an Amended Statement of Claim to the Defendants by 9 November 2012
29. The Defendants to advise the Plaintiff whether they consent to the Amended Statement of Claim by 16 November 2012
30. If the Defendants consent, the Plaintiff to file and serve the Amended Statement of Claim by 23 November 2012
31. The Defendants to file and serve Amended Defences by 7 December 2012.
32. Matter listed for further directions on 12 December 2012.
33. Liberty to apply on three day's notice. 28 November 2012: Plaintiff forwarded a draft Amended Statement of Claim. 7 December 2012: Amended Statement of Claim filed (contained defects - see below). 12 December 2012: Directions hearing. Court made the following orders:
34. The plaintiff is to serve an affidavit verifying the allegations set out in the Amended Statement of Claim pursuant to rule 14.23 of the Uniform Civil Procedure Rules 2005 by 19 December 2012.
35. The first defendant is to file and serve a Defence to the Amended Statement of Claim by 21 December 2012.
36. The plaintiff is to serve his evidence by 23 January 2013.
37. The defendants are to serve their evidence by 20 February 2013.
38. The plaintiff is to serve any evidence in reply by 6 March 2013.
39. Listed for further directions on 13 March 2013.
40. Liberty to restore on 3 days' notice. 13 December 2012: First defendant files Amended Defence. 25 January 2013: Second defendant applies to have the matter re-listed due to the plaintiff's default (ie. failure to comply with order 1 made on 12 December 2012). Listed on 5 February 2013. 5 February 2013: Directions Hearing. The Court made the following orders:
41. The plaintiff is to serve an affidavit verifying the allegations set out in the Amended Statement of Claim pursuant to rule 14.23 of the Uniform Civil Procedure Rules 2005 by 12 February 2013.
42. The plaintiff to serve his evidence by 19 February 2013.
43. If the plaintiff is in default of orders 1 or 2 above, an affidavit by the plaintiff's solicitor explaining the reason for the default must be filed and served 3 clear days before the next directions hearing
44. Matter listed for a directions hearing on 26 February 2013.
45. The plaintiff to pay the first and second defendants' costs of the directions hearing on 5 February 2013. 26 February 2013: Directions hearing. The Court made the following orders:
46. Defendants to serve their evidence by 2 April 2013.
47. The plaintiff to serve evidence in reply by 16 April 2013.
48. Matter listed for a further directions hearing on 23 April 2013. 23 April 2013: Directions hearing. The Court made the following orders:
49. First defendant to serve its evidence by 7 May 2013.
50. The plaintiff to serve any evidence in reply by 21 May 2013.
51. Matter listed for hearing on 14 to 17 October 2013 (4 day estimate). 14 October 2013: Listed for hearing before Justice Robb.

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: 09 December 2013