Simonovski v Bendigo Bank Ltd

Supreme Court of Victoria|2003-05-02|Before: Ashley, J

COSTS - offer of compromise by plaintiffs - later, larger offer of compromise by defendant - new claim by plaintiffs in the interim - whether plaintiffs should have indemnity or solicitor and client costs arising out of their offer of compromise - effect of the defendant's offer on period for which plaintiffs should have solicitor and client costs - whether in the circumstances there should be an order otherwise in respect of the defendant's offer - defendant's failure to comply with O.44 during the period in which its offer was open - important aspects of defence case not revealed - incomplete discovery during period in which defendant's offer was open - plaintiffs' failure on one of two discrete causes of action - significance of proof of matters disputed on cross-notices to admit.

Counsel made subsidiary submissions as to the costs impact of notices to admit served by both plaintiffs and the defendant; and as to costs incurred by the plaintiffs with respect to proposed video link evidence by Mr di Simone, evidence which in the event was not adduced viva voce. I will discuss those submissions in the course of these Reasons.

I consider that the plaintiffs should have their costs up to and including 22 December 2000, those costs to include reserved costs, on a party and party basis; that from 23 December 2000 up to and including 8 September 2002 they should have the costs of the proceeding generally, including reserved costs, as between solicitor and client; and that the plaintiffs' costs thereafter should be paid as to two thirds by the defendant on a party and party basis. I must explain these conclusions.

The plaintiffs made an offer of compromise. It was dated 20 December 2000, and should be treated as having been served on 22 December 2000, being then received by the defendant's solicitors. The proceeding then remained in the County Court. It related only to account 0801. The offer was expressed as follows:

"The Plaintiffs will accept the sum of $220,000.00 (inclusive of interest) plus costs to be taxed on Scale "D" as between solicitor and client or as between party and party as the Court may order in full settlement of the Plaintiffs' claims against the Defendant."

As at December 2000 the plaintiffs would have been entitled to an amount, including statutory interest, which exceeded $220,000 on the claim the subject of the offer of compromise.[1]

Counsel for the defendant submitted that the offer was invalid: it included a reference to costs, and that ambiguously. I reject that submission. The reference to costs was probably otiose. County Court Rule 26.03(7) provides that where a defendant accepts a plaintiff's offer of compromise the defendant shall pay the plaintiff's costs in respect of the claim up to and including the day the offer was served. By r.26.03(8) a term in an offer of compromise purporting to negative or limit the operation of r.26.03(7) "shall be of no effect". In the present case the reference to costs was not of the character dealt with by r.26.08(3). It was of a more benign intended effect. It did no more than draw attention to the fact that the court has its ordinary discretion when awarding costs after acceptance of an offer of compromise; and at the least implied that the plaintiffs would seek an order for solicitor and client costs.

It was submitted for the defendant on the one hand that the offer was uncertain because the question of the appropriate costs order was opened up; and on the other hand that the plaintiffs had no prospect of obtaining a solicitor and client costs order. To those submissions the short answers are that the question what costs order should be made will always be open according to the operation of the Rules; and that whether the plaintiffs were likely to succeed or fail on an application for solicitor and client costs could not preclude them seeking an order for costs on that basis.

The plaintiffs' offer of compromise, then, was good.

The defendant made an offer of compromise on 27 August 2002, in an amount of $275,000. The offer embraced the plaintiffs' claims founded both on account 0801 and account 1089. It did so by offering to compromise "all of your claims". The claim founded on account 1089 had been raised by Further Amended Statement of Claim dated 23 March 2001, leave to amend having been granted on 22 February that year. Allowing for statutory interest up to 27 August 2002 the plaintiffs' entitlement would then have been approximately $271,250 - that is, some $3,750 less than the amount offered by the defendant.

Although the amount that might then have been recovered by the plaintiffs remained in excess of the amount which they had offered to accept in December 2000, I do not consider that the plaintiffs' offer should be given a costs effect beyond 8 September 2002.[2] The plaintiffs had offered to accept $220,000 in respect of a claim which solely related to account 0801. The defendant's larger offer was made with respect to that claim and the claim raised with respect to account 1089. Counsel for the plaintiffs, I add, did not much press reliance on his clients' offer beyond 27 August 2002. There were other reasons why, he submitted, the plaintiffs should have their costs on an indemnity basis after that date.

In the period up to 20 December 2000, being entitled to a judgment on the claim the subject of their offer of compromise no less favourable than such offer, by County Court Rule 26.08(2)(b)[3] the plaintiffs would ordinarily be entitled to party and party costs. At the time when they made their offer the usual consequence of a plaintiff obtaining such a judgment was, by the same Rule, that solicitor and client costs would be payable from the date after the day on which the offer was served. That Rule was amended by SR 126 of 2002, which commenced on 1 January 2003, so as to substitute for the reference to solicitor and client costs a reference to indemnity costs.[4]

I was pressed by plaintiffs' counsel to order that the defendant pay indemnity costs from the inception of the proceeding on 15 February 1999 rather than from 23 December 2000. The defendant, he submitted, had not simply alleged that the plaintiffs had engaged in fraudulent conduct, but had done so although its enquiries had been far from complete. Counsel referred to the belated emergence of various witnesses for the defendant, all important to its case in varying degrees, witnesses both lay and expert; and to the defendant's discovery, incomplete even well into the trial. He submitted also that the pertinent amendment to the County Court Rules was procedural, and that an indemnity costs order should be made after its commencement regardless of the period to which the order related.

I reject the submissions that the plaintiffs should have a special costs order from the commencement of the proceeding, and that on an indemnity basis. It is very clear that, by the various versions of its Defence, the defendant alleged that the plaintiffs had engaged in dishonest conduct, whether simply in collusion with Mr Janevski or in collusion also with Mr Panebianco. It is also the case that the defendant made far from complete investigations concerning the plaintiffs' claim referable to account 0801 both before and after the plaintiffs initiated their proceeding; and that the defendant was ready to accept the reliability of Panebianco created or inspired documents despite his being an admitted thief from bank customers on a large scale.

I do not consider, however, that the defendant's conduct was of a kind which should attract a special order for costs in the period up to and including 22 December 2000. There was a deal of material, not all created by Mr Panebianco, which supported the defendant's thesis that the plaintiffs had not been the depositors with respect to account 0801 but had rather lent their names to a Janevski concoction designed to avoid liability for tax; and which suggested, whatever the source(s) of moneys credited to the account, that the funds therein had eventually been withdrawn in favour of persons other than Mr Panebianco. There was a long trial, involving much evidence, before the plaintiffs were able to satisfy me that the defendant's key contentions concerning account 0801 should be rejected.

Then, as to the question whether the order for costs between 23 December 2000 and 8 September 2002 should be one for solicitor and client or indemnity costs, I accept that the Rules amendment was procedural and so should ordinarily operate with respect to orders made after its commencement. As against that, the proceeding would have been tried in February 2001 had it not been for the plaintiffs' application to amend their statement of claim to raise a claim with respect to account 1089; and it was surely the case that some costs thereafter up to 8 September 2002 were concerned with the preparation of that claim. Various possible orders might be thought appropriate in the circumstances. But balancing out the competing considerations, in my opinion the plaintiffs should have solicitor and client costs for the period commencing 23 December 2000 and ending 8 September 2002; that order encompassing the plaintiffs' costs both with respect to account 0801 and with respect to account 1089. Insofar as that involves an order otherwise for the purposes of County Court Rule 26.08(2)(b), it is an order which I consider must be made.

In concluding that the plaintiffs should have costs on a solicitor and client basis from 23 December 2000 I have not ignored a submission of counsel for the defendant that, in the period that was available to his client to consider the plaintiffs' offer, the plaintiffs were in breach of their obligation under O.44 of the County Court Rules. That submission adapted a submission made for the plaintiffs concerning the consequences of the defendant's offer of 27 August 2002. Later I refer to that argument. It is enough to say, in the present context, that in my opinion the defendant's argument was in particular terms unsound. An accountant's report calculating interest nominally accruing on the account 0801 funds should have been provided two days before the time for the defendant to consider the plaintiffs' offer expired. But the issue of quantification, once the legal framework was established, was never an area of dispute. The accountant's report, I add, simply went into evidence at the trial.

The plaintiffs, being about to obtain a judgment on the claims to which the defendant's offer related[5] which is not more favourable to them than the terms of the offer, by Rule 26.08(3) the defendant, subject to order otherwise, is entitled to an order for party and party costs from the day after the day on which the offer was served. It is clear that an order otherwise should not be lightly made; that the position prima facie established by the Rule is a strong one, not easily displaced. Nonetheless, there is a discretion; and in my opinion it should be exercised in the plaintiffs' favour in this case. That is not to say that the plaintiffs should have all the costs from 8 September 2002; or that they should have costs on anything other than a party and party basis.

In my opinion it is important that, when an offer is made, and during the period when it remains open for consideration, the offeree then has in its possession all the material from the opposing party to which it is entitled, whether by operation of the Rules or by order of the Court. An offeree should not be obliged to consider an offer whilst ignorant of required detail of the offeror's case. In the present case the defendant was relevantly in default when its offer was made; and it continued in default throughout the period that the offer remained open. Moreover, the default was not trivial; rather, the contrary.

Counsel for the defendant submitted that his client could have made its offer earlier, in which case the plaintiffs would not have been entitled to material to which they were entitled by late August 2002. True enough. But to say that because the defendant could have made an offer which the plaintiffs would have been obliged to consider without the advantage of having received particular material from the defendant is beside the point. The fact is that when the offer was made and throughout the period during which it remained open they were so entitled. There is no reason why an offeror which is in breach of rules or orders requiring it to provide information to the offeree should have the advantage of a Rule as to costs when the offeree by reason of the defendant's breach is less equipped than it should be to evaluate the offer. The contrary is the case. That is not to say, I emphasise, that such a failure to provide material will always justify an order otherwise. It will depend upon the circumstances of the particular case.[6] To those circumstances I now turn.

The defendant, by its defence current at trial, baldly denied the plaintiffs' allegation that account 1089 had been opened. Concerning account 0801 the defendant pleaded, inter alia, that the account had been established by Mr Panebianco at the request of the Janevskis under the alias of the plaintiffs; that it was sourced by funds transferred from the P. Krstic, Nastevski and R. Simonovic accounts; and that if the plaintiffs had deposited moneys then the same had been withdrawn and paid into the Jansen and Hilli accounts. The Janevskis were said to have been the true beneficiaries of the Jansen withdrawal.

No orders were made before trial for the service of expert evidence statements. So the Rules operated. By Rule 44.03(1) the defendant was required to serve any such statements on the plaintiffs not later than 30 days before trial. The trial was fixed for 9 September 2002. The defendant was unarguably in default at the time the offer was made; and it so continued until trial. The report of the document examiner, Mr Storey, was only produced on 11 September 2002. More importantly for present purposes, the statements of Mr Kinsman and the first statement of Mr Ellery were not served until 2 October 2002. By the time Mr Storey's report was served the trial was in its third day. By the time the other statements were served the trial had run for 13 of its 24 days. Mr Ellery's second statement was only served on 30 October 2002, by which time 15 days of the trial had passed.

It is not merely that expert witness statements were not in the plaintiffs' hands as they should have been during the period which the defendant's offer was open. Discovery, also, was incomplete. There were 26 appendices to Mr Kinsman's statement. They contained documents not previously discovered, at least one of which the plaintiffs' solicitor had previously requested. Even after Mr Kinsman's report was served discovery continued. Documents were produced on 11 and 15 October and on 6 November. The documents belatedly discovered were quite important. Why their production was so long delayed remains unclear.

Mr Storey's report bore upon the provenance of both passbooks, the question whether Mr Janevski wrote the R. Simonovic signature on a particular document, the question whether there was a common author of an R. Simonovic and a Krstic signature, the question whether Mr Panebianco had initialled the account 1089 passbook, and the question whether the Janevskis had signed withdrawal slips relating to disputed transactions. In many respects his report was equivocal. In other respects it favoured the defendant's case.

Mr Kinsman's statement dealt in great detail with the operation of the defendant's computer banking software known as the Retail Finance System. In that context it expanded upon difficulties with the plaintiffs' case both with respect to account 0801 and account 1089. It provided reasons of substance why, distinct from Panebianco created or inspired documents, the plaintiffs faced difficulties with their claims.

Mr Ellery, a computer expert who had been involved with the "enhancement and maintenance" of branch software for the defendant between 1988 and 1997, dealt in his first statement in considerable detail with the provenance of entries in the account 0801 passbook. In his second statement he responded to expert statements which the plaintiffs had obtained and served in the interim. He pressed an argument that it would have been time-consuming and difficult to employ a PC to operate a bank printer so as to have created the label on the account 1089 passbook. He rejected any suggestion that the bank's own system could have been manipulated so as to explain that label, or to explain other entries which on their face were damaging to the plaintiffs.

The expert reports and the late-discovered material bore upon the prospect that the plaintiffs could establish their case with respect to either account. It was material standing independently of documents which bore the stamp of Mr Panebianco - documents which the plaintiffs and their advisers might have discounted when considering the defendant's offer.

My concern about the defendant's dilatory behaviour is not new, though the context is new. I was on occasions critical during the trial of the defendant's conduct in late-producing material.[7] That conduct caused time to be lost while the plaintiffs' side was given the opportunity of considering its position. On one occasion I said that the plaintiffs might have a remedy in costs regardless of the outcome of the trial by reason of the defendant's failure to abide the Rules.[8] On another occasion I made an order for costs thrown away.[9] That order I add has not net been authenticated.

The plaintiffs, of course, failed to make out their claim with respect to account 1089. That does not oblige a conclusion that the Court should make no order otherwise under Rule 26.08(3). It is possible by a proper exercise of judicial discretion to ensure that the plaintiffs do not benefit unduly by my making an order otherwise.

Before parting from my explanation why an order otherwise should be made I should mention four matters. First, counsel for the defendant submitted, rightly, that it had always been open for the plaintiffs to have made their own offer of compromise after they had been apprised of the defendant's expert material, and once they had taken their own expert advice. The real import of his submission, I think, was that the plaintiffs had by their later conduct shown that they would not have accepted the defendant's offer, even if they had been seised of all material pertinent to the defendant's case in the period that the offer was open.

I do not accept that submission. In my view it is not possible to say, where material was provided long after the trial has commenced, after the plaintiffs and other witnesses had been examined and vigorously cross-examined, what the reaction of the plaintiffs to the defendant's offer would have been before the trial commenced had they then been fully apprised of the defendant's case. When the material was produced, also, the forensic exercise was in full swing. It is unrealistic to suppose that the plaintiffs should have diverted their attention to considering whether they should now make a fresh offer of compromise. Likewise I consider that there is an air of unreality about the idea that, a long and bitter trial having concluded, and judgment being reserved, the plaintiffs' willingness to consider an offer before trial if apprised of all relevant evidence which the defendant intended to call could be assessed by their failure to make an offer of compromise in the period between the end of the trial and delivery of Reasons.

Second, counsel for the plaintiffs submitted that I should order otherwise having account not only of the defendant's dilatory provision of expert witness statements, and its dilatory discovery, but because of its conduct in making and persisting with allegations of fraudulent conduct by the plaintiffs despite inadequate preparation. Counsel instanced the late emergence of lay witnesses called by the defendant, noting that some of them at least had been located by the defendant after the plaintiffs' side had done the work. In a related submission, he referred to belated changes in the defendant's position. He instanced its amended case concerning disbursement to the Jansen and Hilli accounts. I consider that his submission, which was pursued in another connection with respect to costs after 27 August 2002, was not without merit. But I have not relied upon it in deciding that I should otherwise order.

Third, there was a dispute as to where the fault lay why Mr Storey's report was late prepared and served. The plaintiffs' solicitor, Mr Alexander, swore an affidavit on 23 April 2003 in that connection. It was received without objection. Having read it, I accept that the defendant's position was complicated by late withdrawal of a document examiner whom it had earlier engaged; and that Mr Storey's report was delayed because the plaintiffs' solicitors insisted that the plaintiffs' relevant expert, Dr Found, be present when Mr Storey was further examining particular documents. That is not, however, a full explanation for the late service of Mr Storey's report. I should emphasise also my opinion that the late provision of the Kinsman and Ellery reports was a more significant default; as was the late discovery of a considerable number of documents - documents which, discovery apart, should have been included in the court book by virtue of paragraphs 3 and 4 of the order of Master Kings made 5 March 2002.

Fourth, I have already intimated on several occasions that the plaintiffs should have solicitor and client costs up to and including 8 September 2002. That was the day before the trial commenced. It was also the day, pretty well, when the plaintiffs last had an opportunity to accept the defendant's offer. The ending of that period and the commencement of the trial mark a new stage in the life of the proceeding. I consider that it best marks the time when the plaintiffs' offer should be deprived of effect.

I go to the next matter which I have considered pertinent in resolving the costs argument. It is one thing to order otherwise under Rule 26.08(3). It is another thing what order should be made. In the present case the plaintiffs relied upon two distinct causes of action - one arising in respect of account 0801, the other in arising respect of account 1089. The plaintiffs succeeded upon one cause of action. They failed on the other. By Rule 63.04(1) the Court is given a specific power to make an order for costs in relation to a particular question in, or a particular part of, a proceeding. It may deprive a party which has been successful overall of its costs with respect to such a question or part. It has a discretion to order that a generally successful party pay the costs of the other party with respect to such a question or part. It has been said that an order of the latter kind should only be made where the Court concludes that it was unreasonable for the party unsuccessful upon an issue to have raised it; but it has always been said that no such principle exists.

In my opinion the question what order should be made in a particular case must always depend upon the particular circumstances of the case. Even if there should be a predilection against making a costs order in part adverse to a successful party, the circumstances of the particular case might tell to the contrary. That is the situation, I consider, in this case.

The plaintiffs brought two quite distinct claims. There was evidence, oral and documentary, devoted to each. The resolution of the one was not dictated by the evidence given in respect of the other; neither the outcome of the other. That is so although assessment of the evidence generally of particular witnesses required consideration of all their evidence - I have in mind particularly the evidence of the plaintiffs and Mr Panebianco. Upon the evidence adduced the plaintiffs succeeded in one discrete claim and failed on the other. The case is not one simply in which the plaintiffs failed upon one issue within the one cause of action - which is not to say that Rule 63.04(1) may not operate in that situation.

Another consideration tells in favour of an order which does more than simply deny the plaintiffs their costs on the account 1089 claim. The prima facie consequence of Rule 26.08(3) is that the defendant should have all the costs of the trial. It seems to me, despite the defendant's conduct which necessitates an order otherwise, that it would be going too far to make an order in the plaintiffs' favour which simply denied the defendant its costs with respect to the discrete claim on account 1089.

It was agreed between the parties that about 25 per cent of the trial was occupied by evidence and submissions concerning account 1089. It might then be said that the plaintiffs should have 50 per cent of the costs of the trial - that is, 75 per cent less 25 per cent. But in my opinion that would be as wrong as it would be to allow the plaintiffs all the costs of the trial, or 75 per cent thereof. To make such an order would not allow, or sufficiently allow for:

(1) the fact that trial time was lost by reason of the defendant's default in respect of which I have made no order;

(2) the order I made on 30 October 2002 that the plaintiffs should pay the costs thrown away by reason of an adjournment on a solicitor and client basis;

(3) the consequences of notices to admit served by the parties;

(4) the costs thrown away by reason of the defendant's late abandonment of a requirement that it cross-examine an expert witness for the plaintiffs, Mr di Simone.

I should expand upon each of those four matters. As to the first, time was lost by reason of the defendant's late provision of material, concerning which lost time I made no order for costs. The defendant should not be advantaged thereby. As to the second, about a day's court time was lost on 29 and 30 October. I ordered that the defendant pay the costs thrown away on a solicitor and client basis. The order not having been authenticated, I am able to and I will vacate it, taking its subject matter into account in determining what proportion of the overall costs of the trial the plaintiffs should recover.

I go to the third matter. The plaintiffs gave a Notice to Admit dated 14 September 2001. The notice sought the admission of 13 facts, and an admission of the authenticity of 11 documents. The defendant by notice dated 28 September 2002 disputed each of the 13 facts and the authenticity of each of the 11 documents. Counsel for the defendant conceded that his client should pay the costs associated with proof of the 13 facts and proof of the authenticity of seven of the 11 documents. Counsel submitted that the plaintiffs had not adverted to three of the other four documents; and he would have it that the plaintiffs had failed to prove the authenticity of the account 1089 passbook.

The defendant served notices to admit on the plaintiffs dated 21 August 2002. The plaintiffs disputed each of the 15 facts which they were asked to admit. Counsel for the defendant submitted that the defendant should have the costs of proving 12 of the 15 facts. The matter was not argued out; but reading the Notices to Admit, and considering the evidence, I think that the defendant proved in only a very few instances facts the admission of which was sought, in other cases proving some part only of such a fact.

In the event, the defendant is entitled to its costs of proving some of the disputed facts. I consider, as with the plaintiffs' notices, that the costs consequences of the defendant's notice are best taken into account in determining the costs of trial overall, rather than by making discrete orders with respect to the subject matter of the notices.

I go to the last of the four matters. The plaintiffs engaged Mr di Simone to advise them, and if required to give evidence, concerning matters raised by Messrs Kinsman and Ellery. He provided a report dated 24 October 2002. He had to go overseas. The plaintiffs arranged for him to give evidence from the United States by video link. An application was made and granted on 11 November that his evidence be taken in that way. His evidence was to be taken on 12 November. Shortly before Court sat that day counsel for the defendant advised plaintiffs' counsel that Mr di Simone's report could be tendered by consent. Costs had been incurred by the plaintiffs in making the application and in arranging for the availability of the video conferencing facilities and of the witness at the particular venue. Those costs were wasted.

The witness's report concerned, principally, the question whether the defendant's computer system could have been circumvented so as to permit Mr Panebianco to print the label for the account 1089 passbook on a bank printer.

Counsel for the defendant submitted that as at 31 October the prospect had been left open that Mr di Simone would give evidence beyond that contained in his report; and that such prospect was only late abandoned. Its abandonment, he submitted, motivated his client to consent to admission of Mr di Simone's report. That submission was not squarely addressed by plaintiffs' counsel. The position must have been plain to the defendant's side by 11 November, however, for on that day defendant's counsel submitted that many parts of the report should be excluded. Had the objections been upheld, a good deal of the report would have disappeared. But I upheld one objection only.[10] Moreover, the part of the report to which objection was successfully taken did not relate to the principal issue addressed by the witness. Had that part remained in the report it would have been inconsequential because, as I said in my Ruling, it was really no more than non-expert speculation.

In my view, all things considered the costs burden of the trial overall should reflect to an extent the fact that costs were wasted in the present connection. I should add that there is no obvious reason why the defendant should not have communicated its position that Mr di Simone need not be called viva voce at latest very quickly after I gave my Ruling on the afternoon of 11 November 2002.

I noted a little earlier that plaintiffs' counsel sought costs after 27 August 2002 on an indemnity basis; and the grounds upon which he did so. Those grounds partly recapitulated matters relied upon in support of the submission that I should order otherwise. The matters raised by counsel, in their totality, did not lack force. But in my opinion it would be too harsh both to order otherwise under Rule 26.08(3) and to make an order in the plaintiffs' favour for indemnity costs after 8 September.

It is having taken into account the many matters to which I have referred that I have concluded that the plaintiffs should have two thirds of the costs of the proceeding from 9 September on a party and party basis. It is necessary in a practical sense, I add, that an order be made in that form rather than that cross orders be made.

One final matter requires comment. The plaintiffs gave security for costs in amounts totalling $70,000. I do not know in what form the security was given. At least subject to the institution of any appeals the plaintiffs should be relieved of their obligation.

Subject to anything that counsel may say as to form, I shall order that:

(1) there be judgment for the plaintiffs for $285,448.40, that sum including interest of $108,271.99 pursuant to statute;

(2) the costs order made by me on 30 October 2002 be vacated;

(3) the defendant pay the plaintiffs' costs of the proceeding, including reserved costs, from the commencement of the proceeding up to and including 8 September 2002 as follows:

(a) on a party and party basis up to and including 22 December 2000;

(b) on a solicitor and client basis for the period commencing 23 December 2000 and concluding 8 September 2002, both dates inclusive;

(4) the costs payable pursuant to paragraph (3) be paid on County Court Scale D up to and including 12 April 2001, and thereafter as appropriate in this Court;

(5) Notwithstanding the offer of compromise served by the defendant on the plaintiffs on 27 August 2002, the costs of the proceeding from 9 September 2002 on a party and party basis as to two thirds of those costs be paid by the defendant.

(Discussion ensued)

(6) The security for costs provided by the plaintiffs be discharged and that part of it held by the Prothonotary be paid to the solicitors for the plaintiffs.

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[1] The amount to which the plaintiffs would then have been entitled, including statutory interest, was $236,345.07.

[2] I shall later say why 8 September 2002 and not 28 August that year.

[3] I consider that to be the case because, although judgment will be entered upon the proceeding as finally constituted, it will be a judgment in substance which relates solely to the claim referable to account 0801.

[4] That amendment mirrored amendment to the Rules of this Court made by SR 121 of 2002, also operating from 1 January 2003. In the case of the Rules of both Courts, the amendment followed the introduction of Rules specifically relating to indemnity costs. In the case of this Court, see Rules 63.28(c) and 63.30.1, introduced by SR 111 of 2001. In the case of the County Court see Rules 63A.28(c) and 63A.30.1, introduced by SR 122 of 2001.

[5] That is, the claims with respect both to account 0801 and account 1089.

[6] As is illustrated by Morgan v. Johnson [1998] NSWSC 367; (1998) 44 NSWLR 578.

[7] See generally T 146-153; T 852-879, where I gave a Ruling requiring the defendant to give the plaintiffs a statement of expert evidence of Mr Kinsman; and T 1159-1160.

At a glance

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Judgment (62 paragraphs)

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Cases Cited (1)