Sedgwick v Varzonek

Supreme Court of NSW|2015-10-21|Before: Slattery J

Judgment

Mr Sedgwick, the plaintiff, has been successful in his claim in estoppel that he is entitled to $200,000 from the proceeds of the settlement of Marlene Reis' personal injuries litigation. But his claims in contract and for a family provision order under the Succession Act 2006 have failed, and the parties have indicated that they do not require a decision from the Court on the alternative restitution claim: Sedgwick v Varzonek [2015] NSWSC 1275. Mr Sedgwick now applies for a special costs order. The Court will grant that order.
This is the Court's second judgment in these proceedings. Events, matters and things are referred to in this judgment in the same way as they are in the Court's principal judgment.
Mr Sedgwick seeks his costs on the ordinary basis up to and including 24 July 2014 and on an indemnity basis from 25 July 2014 up to the conclusion of the proceedings.
Mr Sedgwick principally submits he is entitled to those orders because Mrs Varzonek, the defendant and Ms Reis' executrix, unreasonably refused an offer of compromise made on 24 July 2014.

The 24 July 2014 offer of compromise

On 24 July 2014 David Landa Stewart Lawyers, Mr Sedgwick's solicitors, sent a letter by email to Teece Hodgson & Ward Solicitors, Mrs Varzonek's solicitors, enclosing a document headed "Offer of Compromise". That letter conveyed that the enclosed offer was intended as both an offer of compromise under the UCPR and as an offer made in accordance with the principles set out in Calderbank v Calderbank [1975] 3 WLR 586 (Calderbank), and as such the offer would be relied upon in relation to the issue of Mr Sedgwick's costs of the proceedings.
The letter stated that the offer of compromise was open for acceptance for a period of 35 days. The offer of compromise stated that Mr Sedgwick offered to compromise his claim on the following terms: "1 The Plaintiff receive a legacy of $120,000 out of the estate, or if necessary the notional estate, of the Late Marlene Xenia Reis ("the Deceased"). 2. If the legacy referred to in paragraph 1 above is not paid on or before 35 days from the day on which orders are made in accordance with this Offer of Compromise, interest shall thereafter run on the unpaid balance thereof at the rate or rates prescribed by s 84A(3) of the Probate and Administration Act 1898 for unpaid legacies until that legacy is paid in full. 3. The Plaintiff's costs, as agreed or assessed on the ordinary basis, be paid out of the estate, or if necessary the notional estate, of the Deceased. 4. The Defendant's costs, as agreed or assessed on the indemnity basis, be paid or retained out of the estate, or if necessary the notional estate, of the Deceased."
The relevant elements of the offer are as follows. First, it proposed an offer to settle the plaintiff's claim for $120,000; secondly, it sought costs as agreed or assessed out of the estate; thirdly, it proposed the defendant's costs be paid on an indemnity basis out of the estate; fourthly, it was open for acceptance for 35 days from the date upon which it was made; and fifthly, it was expressed as being an Offer of Compromise in accordance with UCPR, r 20.26.

The 24 July 2014 Calderbank offer

On the same day as sending the offer of compromise, Mr Sedgwick's lawyers also sent by email a Calderbank offer in similar terms. The offer noted that it was being made pursuant to the principles stated in Calderbank and was being made without prejudice save as to costs. Mr Sedgwick reserved his right to tender the letter on the question of costs if the offer were rejected. The letter stated that the offer would remain open for acceptance for a period of 35 days, which Mr Sedgwick's solicitors contended to be a reasonable period to receive instructions from the estate's beneficiaries, Ms Reis' daughter Tania, and her mother Anna and sister Kamila, who reside in Poland.
Mr Sedgwick's offer was put in the following terms: "(a) the Estate to pay our client an amount of $120,000 in relation to his claim; and (b) the Estate to pay an amount of $65,000 in respect of our client's party/party costs."
The letter refers to what David Landa Stewart Lawyers described as the respective strengths of Mr Sedgwick's family provision claim, his contract claim and his estoppel claim. The solicitors sought to justify the reasonableness of the offer on the basis that the amounts requested in relation to Mr Sedgwick's claim and in relation to his legal costs were discounted from the full amounts to which Mr Sedgwick claimed to be entitled.

The 13 February 2015 Calderbank letter

Mr Sedgwicks' lawyers sent a third offer of compromise on 13 February 2015, after the hearing of the matter in October 2014 but before judgment was delivered. That letter put an offer to Mrs Varzonek which was more advantageous to Mr Sedgwick than the previous offers made before the hearing of the matter. The offer was put in the following terms: 1. We are instructed to put to you the following offer: (a) the Estate to pay our client an amount of $200,000 in relation to his claim; and (b) the Estate to pay an amount of $145,500 in respect of our client's party/party costs. 2. In relation to costs, please note that: (a) our firm's costs to date are to the order of in excess of $143,000 including GST and disbursements; (b) Mr Michael Wilimott SC's costs are $58,465; and (c) Mr Allan Blank's costs are $32,616 Total: $234,081.00.
The letter also noted the 24 July 2014 Calderbank offer, and warned Mrs Varzonek's solicitors once more that Mr Sedgwick would pursue costs on an indemnity basis as a result of their client's rejection of that offer, if Mr Sedgwick succeeded with his claim.

Consideration

The context in which Mr Sedgwick's lawyers sent the two offers on 24 July 2014 is important. Mr Sedgwick commenced the proceedings seeking orders for family provision pursuant to the Succession Act 2006 by filing a summons on 14 December 2012. But Mr Sedgwick later expanded his case by filing a statement of claim on 25 February 2014, which pleaded the estoppel and contract claims for the first time. Mr Sedgwick thereby alerted Mrs Varzonek to the expanded case five months before sending the offer of compromise and the Calderbank offer on 24 July 2014. Mr Sedgwick's principal affidavit, which contained evidence relating to both the family provision claim and the estoppel claim, was sworn on 24 May 2013, over a year earlier. The proceedings had been on foot for some time, and Mrs Varzonek had time to understand fully the nature of the case that Mr Sedgwick put against her.
Against this, Mrs Varzonek contends that she only became aware of Mr Sedgwick's restitution claim when he first advanced it in the opening of the case. Mr Sedgwick framed the restitution claim as one for restitution following a necessitous intervention, arising out of the particulars of damage in the deceased's personal injury claim. The restitution claim was pleaded in the statement of claim as a claim in contract, not as a claim in restitution. Mrs Varzonek submits that Mr Sedgwick's evidence in relation to his restitution claim consisted of little more than the particulars of personal services in the deceased's personal injury claim, and so Mrs Varzonek only had a clear picture of the claim when Mr Sedgwick served submissions on her on 10 November 2014, after the Court concluded hearing oral evidence.
But Mr Sedgwick's restitution claim for $54,978 was a relatively minor part of his total claim when compared to his $200,000 estoppel claim and his family provision claim. Regardless of what little Mrs Varzonek knew of his restitution claim, the failure to fully articulate it before trial did not detract from capacity of the estate to understand Mr Sedgwick's ultimately successful estoppel claim. Further, Mr Sedgwick's primary success in the proceedings was on the basis of his estoppel claim. The Court did not have to make final findings regarding his entitlement to restitution from the estate; see paragraph [235] of the principal judgment. In light of those facts, Mrs Varzonek's limited knowledge of the restitution claim as it would finally be put, viewed as at the time the July 2014 offers were made, was not a reason for her not to accept one of Mr Sedgwick's offers.
Each of Mr Sedgwick's letters of compromise should be considered in turn to consider whether Mrs Varzonek's rejection of any of those letters was unreasonable.

The 24 July 2014 Calderbank offer

Mrs Varzonek was in a position to assess the reasonableness of Mr Sedgwick's Calderbank offer when it was served. In relation to the request for $120,000 in settlement of Mr Sedgwick's claims, Mrs Varzonek knew enough about Mr Sedgwick's claims to understand the nature of Mr Sedgwick's estoppel claim, that if Mr Sedgwick's evidence were accepted that the claim was likely to be successful at trial, and that the $120,000 requested represented a substantial discount from the $200,000 to $250,000 to which Mr Sedgwick claimed he was entitled. Mrs Varzonek relied on the fact that several affidavits in Mr Sedgwick's case were only filed much after the date of the Calderbank offer. For example, James Butler and Yolande Sedgwick swore affidavits on 3 October 2014, Mr Sedgwick swore an affidavit on 13 October 2014 and Luisa Silva and Shontelle Sedgwick swore affidavits on 14 October 2014. But those the contents of affidavits relate primarily to Mr Sedgwick and the deceased's relationship, a question relevant to the family provision claim, with a few references to agreements and promises in Yolonde and Shontelle Sedgwick's evidence. The Court did not place heavy reliance on their evidence in any event. The material filed after the offer was made was not relevant to the estoppel claim.
The Calderbank offer included a request for $65,000 towards payment of Mr Sedgwick's legal fees up to that point. The letter justified the request for that figure by comparison with Mr Sedgwick's actual fees to that point, which is described in the following way: "In relation to costs, our firm's costs to date are to the order of in excess of $78,000 excluding GST and disbursements. We also engaged Senior Counsel in the early stages of the proceedings and presently retain junior counsel. Our junior counsel's costs are approximately $10,000. On a party/party basis we take the view that our client would recover between 60-70% of these costs and our offer in relation to costs is significantly less than that. As indicated, if our client is successful in his claim, we may be entitled to indemnity costs."
The 35 day period that the Calderbank offer allowed Mrs Varzonek to accept the offer gave her a reasonable time to consider her position. Mrs Varzonek's role as executrix of the deceased's estate was complicated by the fact that she was simultaneously facing claims for family provision from Mr Sedgwick and from Tania Reis, the deceased's daughter. As noted in the judgment, Tania's proceedings were settled on the first day of the hearing. Mrs Varzonek's need to account to the beneficiaries of the estate in Poland also made it more difficult for her to carry out her duties as executrix. But even in light of those difficulties, the 35 day period gave Mrs Varzonek enough time to communicate with and receive instructions from the beneficiaries in Poland, and to consider the relevance of Tania's claim to settling the proceedings with Mr Sedgwick.
Given the offer's cogent description of the basis for both of the monetary limbs of the offer, it was unreasonable for Mrs Varzonek to reject the offer. Had Mrs Varzonek accepted the offer, she would have been in a better position than she stands now with respect to both her substantive liability to pay Mr Sedgwick and her liability to pay Mr Sedgwick's costs. The rejection of the 24 July 2014 Calderbank offer therefore provides the Court with a proper basis to order that Mrs Varzonek pay Mr Sedgwick's costs on an indemnity basis, based on the principles developed after Calderbank.

The 24 July 2014 Offer of Compromise

Mr Sedgwick's 24 July 2014 offer titled "Offer of Compromise" self-evidently identifies itself primarily as an offer of compromise under the UCPR. Mr Sedgwick issued the offer with the intention that its acceptance or rejection would attract the consequences set out in UCPR, Part 20, Division 4 (rr 20.25 - 20.32). The requirements that an offer of compromise must meet to be effective under the UCPR's regime are set out in r 20.26(2): "(2) An offer under this rule: (a) must identify: (i) the claim or part of the claim to which it relates, and (ii) the proposed orders for disposal of the claim or part of the claim, including, if a monetary judgment is proposed, the amount of that monetary judgment, and (b) if the offer relates only to part of a claim in the proceedings, must include a statement: (i) in the case of an offer by the plaintiff, as to whether the balance of the proceedings is to be abandoned or pursued, or (ii) in the case of an offer by a defendant, as to whether the balance of the proceedings will be defended or conceded, and (c) must not include an amount for costs and must not be expressed to be inclusive of costs, and (d) must bear a statement to the effect that the offer is made in accordance with these rules, and (e) if the offeror has made or been ordered to make an interim payment to the offeree, must state whether or not the offer is in addition to that interim payment, and (f) must specify the period of time within which the offer is open for acceptance."
The offer of compromise included an amount for costs, because it stipulated that Mr Sedgwick's costs, as agreed or assessed on the ordinary basis, were to be paid out of the estate or notional estate of the deceased. Under UCPR, r 20.26 as it stood prior to 7 June 2013, that inclusion would have prevented the offer from operating under the rules: Old v McInnes and Hodgkinson [2011] NSWCA 410; Whitney v Dream Developments Pty Ltd [2013] NSWCA 188; 84 NSWLR 311. That is because the previous version of the rule provided in part: "(2) An offer must be exclusive of costs, except where it states that it is a verdict for the defendant and that the parties are to bear their own costs."
But subrule (c) was amended to appear, as it does above, as a result of the Uniform Civil Procedure Rules (Amendment No. 59) 2013, which took effect from 7 June 2013. In light of those amendments to the UCPR, the offer's reference to Mr Sedgwick's costs being payable on the ordinary basis as assessed or agreed does not preclude the operation of the rules: Dailhou v Kelly; State of NSW v Kelly (No 3) [2014] NSWSC 1220 per Adamson J at [5]-[9].
Mrs Varzonek claims that the offer was an offer of compromise under the rules, but that it was an offer in respect only of Mr Sedgwick's family provision claim (under r 20.26(2)(a)(i)) and so sought proposed orders for disposal of that part of the claim by way of the distribution of a legacy from the estate, which is the standard form for the payment of such claims. But the offer of compromise does not narrowly concern itself only with Mr Sedgwick's family provision claim. In the offer's filing preparation details, it is said to be prepared in relation to: "Plaintiff's claim". The offer begins by stating that: "the Plaintiff offers to compromise this claim on the following terms". In light of the statement of claim filed five months prior to this offer, which pleaded not just the family provision claim sought under the previous summons, but also further estoppel, contract and restitution claims, it would be artificial to interpret the offer as relating only to the family provision claim and not to the entirety of Mr Sedgwick's claim, including all of the relief claimed.
In light of the above, I accept that the offer of compromise was made in accordance with UCPR, r 20.26. It follows that as a consequence UCPR, r 42.14 must apply, because Mr Sedgwick made the offer which Mrs Varzonek then rejected, and Mr Sedgwick has obtained a judgment "no less favourable" than the terms of what he offered. As such, under r 42.14(2) Mr Sedgwick is entitled to costs assessed on the indemnity basis from the beginning of the day following the day on which the offer was made, that being 25 July 2014, and is also entitled to costs assessed on the ordinary basis before and up to that time.

The 13 February 2015 Calderbank letter

Given the Court's findings with respect the offers Mr Sedgwick sent on 24 July 2014, it is not necessary to express any opinion on the 13 February 2015 Calderbank letter.

Conclusion

The Calderbank offer and the offer of compromise Mr Sedgwick made on 24 July 2014 both justify an order that Mr Sedgwick's costs be assessed on an indemnity basis. The Court will order his costs are to be assessed on that basis from 25 July 2014, the day provided for in the offer of compromise, and on the ordinary basis prior to that date, in accordance with UCPR, r 42.14(2).
As Mrs Varzonek appears in this proceeding in her capacity as a representative of the deceased's estate, the Court will, as requested, order that her costs be paid out of the estate on the indemnity basis.

Apportionment of costs

Had the Court found that Mrs Varzonek acted reasonably in rejecting Mr Sedgwick's three offers, I would have been minded to make an order as to costs so as to reflect the time the Court spent dealing with Mr Sedgwick's unsuccessful family provision claim, on which Mr Sedgwick was not successful. I refer to the principles summarised in Bostik Australia Pty Ltd v Liddiard (No. 2) [2009] NSWCA 304 at [38]: "Where there are multiple issues in a case the Court generally does not attempt to differentiate between the issues on which a party was successful and those on which it failed. Unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed. In relation to trials it has been said that it may be appropriate to deprive a successful party of costs or a portion of the costs if the matters upon which that party was unsuccessful took up a significant part of the trial, either by way of evidence or argument. A similar approach is adopted on appeal. … Whether an order contrary to the general rule that costs follow the event should be made depends on the circumstances of the case viewed against the wide discretionary powers of the court, which powers should be liberally construed. A separable issue can relate to 'any disputed question of fact or law' before a court on which a party fails, notwithstanding that they are otherwise successful in terms of the ultimate outcome of the matter. Where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion and mathematical precision is illusory. The exercise of the discretion depends upon matters of impression and evaluation." (Citations omitted).
Here, Mr Sedgwick's unsuccessful family provision claim was clearly separable from the successful estoppel claim, as it rested on a separate basis (needing separate evidence), that is the de facto relationship that Mr Sedgwick submitted he and the deceased shared. The argument and evidence relating to the family provision claim took up a significant part of the trial by way of both evidence and argument. Absent her unreasonable refusal of Mr Sedgwick's offers of compromise, I would have been minded to apportion costs so that Mr Sedgwick would recover two-thirds of his costs of the hearing.
But Mrs Varzonek's unreasonable rejection of Mr Sedgwick's offers of compromise is an overwhelming factor weighing against the exercise of my discretion to depart from the ordinary rule, under UCPR, r 42.1, that costs are to follow the event. The Court is not bound or even presumed to order indemnity costs against an offeree who does not accept a Calderbank offer and does not obtain a more favourable judgment: Tati v Stonewall Hotel Pty Ltd (No 2) [2012] NSWCA 124 at [9]. Rather, discretionary considerations are at large. Where the Court finds that an offeree did unreasonably reject a Calderbank offer, as the Court has found here, there are important public policy considerations that persuade the Court that it should order the assessment of all the costs on the indemnity basis. Had Mrs Varzonek accepted the Calderbank offer, as it was reasonable for her to do, none of the costs of the hearing would have been incurred. The fact that Mr Sedgwick spent a significant proportion of his costs of the hearing on an unsuccessful issue does not displace the importance of Mrs Varzonek's antecedent conduct in unreasonably rejecting the Calderbank offer.

Specified Gross Sum Costs Order

The Court is minded to make a specified gross sum order under Civil Procedure Act 2005 ("CPA"), s 98(4)(c) in this matter, if the parties can agree upon a co-operative procedure to implement such an order without much further cost being incurred.
The applicable principles in relation to the making of specified gross sum costs orders under CPA, s 98(4)(c) may be shortly stated. Although the CPA s 98(4)(c) power has been described as particularly suited to complex litigation, the rule is expressed in general terms and is not limited to cases of that type: Australasian Performing Rights Association Ltd v Marlin [1999] FCA 1006 at [3] (Burchett J). The power to award a CPA s 98(4)(c) specified gross sum instead of assessed costs is exercised whenever the circumstances warrant its exercise; the purpose of the rule is to avoid the expense, delay and aggravation arising out of taxation: Beach Petroleum NL v Johnson (No. 2) (1995) 57 FCR 119 (von Doussa J).
Probable inability to pay a costs order will usually provide a proper basis for the making of a s 98(4)(c) order. If the unsuccessful party ordered to pay costs is unlikely to be able to pay the amount of costs ordered then the successful party is further aggravated by having to fund the additional costs of taxation, those costs also being unrecoverable: Harrison v Schipp [2002] NSWCA 213; 54 NSWLR 738 ("Schipp") at [21] (Giles JA) and Hadid v Lenfest Communications Inc [2000] FCA 628 ("Hadid") (Lehane J).
But there are many other reasons for making such an order. Here there is a pressing need in the interests of a number of parties interested in these proceedings to bring consequential aspects of the proceedings to a rapid conclusion. Marlene died almost four years ago. Mr Sedgwick is in poor health and has pressing financial needs. Marlene's mother Anna is an elderly pensioner in Poland. She and her daughter, Marlene's sister, have immediate financial needs. Rapid disposal of costs issues is desirable.
There is no procedural obstacle to the CPA s 98(4) discretion being exercised now. CPA s 98(4) provides as follows: "98. Courts powers as to costs (4) In particular, at any time before costs are referred for assessment, the court may make an order to the effect that the party to whom costs are to be paid is to be entitled to: (a) costs up to, or from, a specified stage of the proceedings, or (b) a specified proportion of the assessed costs, or (c) a specified gross sum instead of assessed costs, or (d) such proportion of the assessed costs as does not exceed a specified amount."
The Court may make such an order "at any time before costs are referred for assessment". The costs order being made today has not yet been referred for assessment.
How does the lump sum assessment take place? The specified gross sum under s 98(4)(c) can be fixed broadly, having regard to all the information available to the Court: Schipp at [22] and Hadid at [27]. The approach taken to the estimation of costs must be "logical, fair and reasonable" and the powers should only be exercised when the Court considers it can do so "fairly between the parties, and that includes sufficient confidence in arriving at an appropriate sum on the materials available": Schipp at [22] per Giles JA.
This generally appears to be an appropriate case for ordering a specified gross sum instead of assessed costs (called hereafter a "lump sum costs order").
But the advantages of a lump sum costs order will be defeated unless the process is streamlined with a measure of agreement and co-operation. Mr Sedgwick's legal representatives should put on a short affidavit within 7 days annexing a receipt of their memoranda of costs and disbursements incurred in the proceedings. Both parties should then have an opportunity to advance within a further 7 days brief written submissions as to the lump sum costs order that should be made. No expert evidence should be permitted.
Orders giving effect to this mechanism are included at the conclusion of these reasons. Those orders do not provide for filing expert evidence. But the parties have liberty to apply and can if they wish seek to vary these orders to provide for more steps. But each side should understand that if that course is taken and the steps being proposed significantly lengthen the lump sum costs assessment process then the option the Court will consider is referring the proceedings for costs assessment in the usual way and not making a lump sum costs order.
The Court therefore orders that:
The plaintiff to receive out of the estate of the deceased an amount of $200,000.
Out of the estate of the deceased, the plaintiff's costs are to be paid: a) On the ordinary basis up to 24 July 2014; and b) On an indemnity basis from 25 July 2014.
The defendant's costs, assessed on an indemnity basis, are to be paid out of the estate of the deceased.
The plaintiff shall file a short affidavit by 5.00pm on 6 November 2015 annexing a record of the plaintiff's costs and disbursements incurred in the proceedings.
Each party shall file by 5.00pm on 13 November 2015 submissions as to whether or not a specified gross sum order under Civil Procedure Act 2005, s 98(4)(c) should be made in favour of the plaintiff and if so in what amount.
Grant liberty to apply.

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 October 2015

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