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Category: Costs

Parties: Matthew Norbury Williams (Plaintiff/Respondent)
Robert Burton (Third Defendant/First Applicant)
Mark Bloch (Fourth Defendant/Second Applicant)

Representation: Counsel:
M Hutchings (Defendants/Applicants)
Solicitors:
Makinson d’Apice (Defendants/Applicants)
Plaintiff/Respondent (self-represented)

File Number(s): 2020/00277516

JUDGMENT

1. On 8 May 2026, I delivered judgment for the Defendants in Williams v Burton [2026] NSWSC 486 (the Judgment), by which the Defendants obtained the following orders against the Plaintiff:

“(1) Judgment for the Third and Fourth Defendants pursuant to r 29.10 of the Uniform Civil Procedure Rules 2005 (NSW).

(2) The Plaintiff pay the Third and Fourth Defendants’ costs.

(3) If any party wishes to apply to vary Order 2 above, he is to notify my chambers of such intention within 7 days so that a timetable may be established to determine the application on the papers.”

2. The Defendants have applied for two variations to Order 2. First, an order for indemnity costs as and from 10 May 2021, being the date on which an offer of compromise was issued. Secondly, an order that the Plaintiff pay costs in a gross sum of $298,261.8 pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW) (the CPA). That amount, and the amounts given below, has been adjusted because a party which is registered for GST and entitled to claim an input credit will not be allowed to recover legal costs of GST on assessment: Gagner Pty Ltd t/as Indochine Cafe v Canturi Corporation Pty Ltd [2009] NSWCA 413; 262 ALR 691 at 723 [152]–[153] (Campbell JA, Macfarlan JA and Sackville AJA agreeing). Although there is no evidence as to whether the Defendants are registered for GST, I infer from the circumstances that they are.

Salient facts

3. The following facts are necessary to understand this application. Further background is set out in greater detail in the Judgment.

4. The Plaintiff commenced these proceedings in the District Court on 24 September 2020. The proceedings were transferred to this Court on 13 May 2022. The Plaintiff retained solicitors to act for him in this matter until February 2025. He was self-represented thereafter.

5. Between commencement of the matter and final hearing beginning on 4 May 2026, the Defendants’ solicitors sent to the Plaintiff the following offers:

6. on 10 May 2021, an offer of compromise to resolve the proceedings by way of judgment for the Defendants with no order as to costs;

7. on 2 September 2021, an offer of compromise to resolve the proceedings by way of judgment for the Defendants with no order as to costs;

8. on 10 August 2025, a Calderbank letter offering to resolve the proceedings by way of judgment for the Defendants with each party to pay its own costs;

9. on 17 March 2026, a Calderbank letter offering to resolve the proceedings by way of judgment for the Third Defendant with each party to pay its own costs;

10. on 17 March 2026, a Calderbank letter offering to resolve the proceedings by way of judgment for the Fourth Defendant with no order as to costs;

11. on 17 March 2026, two offers of compromise to resolve the proceedings by way of judgment for the Third and Fourth Defendants respectively with no order as to costs.

12. There is no evidence of any response to those offers.

Principles

7. Rule 20.26 of the Uniform Civil Procedure Rules 2005 (NSW) (the UCPR), which makes provision for offers of compromise that can be made in proceedings, provides, relevantly, as follows:

20.26 Making of offer

(1) In any proceedings, any party may, by notice in writing, make an offer to any other party to compromise any claim in the proceedings, either in whole or in part, on specified terms.

(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.

(3) An offer under this rule may propose

(a) a judgment in favour of the defendant—

(i) with no order as to costs, or

(ii) despite subrule (2)(c), with a term of the offer that the defendant will pay to the plaintiff a specified sum in respect of the plaintiff's costs, or

(b) that the costs as agreed or assessed up to the time the offer was made will be paid by the offeror, or

(c) that the costs as agreed or assessed on the ordinary basis or on the indemnity basis will be met out of a specified estate, notional estate or fund identified in the offer.

…

(5) The closing date for acceptance of an offer—

(a) in the case of an offer made two months or more before the date set down for commencement of the trial--is to be no less than 28 days after the date on which the offer is made, and

(b) in any other case--is to be such date as is reasonable in the circumstances.

…

(10) A party may make more than one offer in relation to the same claim.

8. There may be consequences to a party which does not accept an offer of compromise. Rule 42.15A of the UCPR provides that where a defendant’s offer of compromise is rejected by the plaintiff and the defendant obtains judgment no less favourable than the terms of the offer, then the defendant is entitled to costs on an indemnity basis, assessed after the date on which the offer was made. However, a defendant’s “entitlement” is subject to the Court’s discretion, expressed by the words “unless the court orders otherwise”: Langdon v Carnival PLC (2024) 115 NSWLR 78; [2024] NSWCA 168 (Langdon) at 84–85 [187]–[188] (Ward P).

9. The Court’s discretion to order costs is contained in CPA s 98. In exercising its discretion, the Court must take into account the overriding purpose contained in CPA s 56, which is the just, quick and cheap resolution of the real issues in the proceedings. Costs orders are not punitive but compensatory: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at 97 [67] (McHugh J).

10. In Chalik v Chalik [2025] NSWCA 136 at [135] (Bell CJ, Payne and Free JJA), the Court of Appeal endorsed the statement in Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 at 724, where Kirby P, Mahoney JA and Samuels AJA stated that the purposes of the rules concerning offers of compromise and Calderbank letters include:

“1. To encourage the saving of private costs and the avoidance of the inherent risks, delays and uncertainties of litigation by promoting early offers of compromise by defendants which amount to a realistic assessment of the plaintiff's real claim which can be placed before its opponent without risk that its “bottom line” will be revealed to the court;

2. To save the public costs which are necessarily incurred in litigation which events demonstrate to have been unnecessary, having regard to an earlier (and, as found, reasonable) offer of compromise made by a plaintiff to a defendant; and

3. To indemnify the plaintiff who has made the offer of compromise, later found to have been reasonable, against the costs thereafter incurred. This is deemed appropriate because, from the time of the rejection or deemed rejection of the compromise offer, notionally the real cause and occasion of the litigation is the attitude adopted by the defendant which has rejected the compromise. In such circumstances, that party should ordinarily bear the costs of litigation.”

11. The reasonableness of a plaintiff’s rejection of an offer of compromise must be assessed objectively rather than by reference to the motivations and understanding of the rejecting party: The Uniting Church in Australia Property Trust (NSW) t/as Northaven Retirement Village v Takacs (No 2) [2008] NSWCA 172 (Takacs (No 2)) at [13] (Hodgson JA, McColl JA agreeing). That assessment is to be made as from the date on which the offer was made rather than with the benefit of hindsight: Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368 at [33] (Spigelman CJ, Beazley and McColl JJA).

Material

12. I ordered the parties to file submissions on costs of no more than two pages (excluding evidence in support). The Defendants rely on their written submissions and an affidavit of Mr Nicholas Regener, solicitor for the Defendants, affirmed 21 May 2026, which contains numerous and lengthy annexures.

13. The Plaintiff sent a number of emails and attachments to my chambers. Some of the emails were in the nature of submissions and attached to one of them was a document styled “(Draft) Outline Response on Costs”. In the email to which that document was attached, Mr Williams stated that he also requested a stay on any costs orders pursuant to UCPR r 36.16. In the absence of any such motion being filed, I consider it appropriate to make a determination as to costs. I will, however, to the Plaintiff’s advantage, treat certain of his emails as submissions where they go beyond the scope of his written submissions.

Indemnity costs

14. In determining whether the Defendants’ offer of 10 May 2021 enlivens UCPR r 42.15A, I must first consider whether the offer complied with UCPR r 20.26 and whether it was truly an offer of compromise. If I so find, UCPR r 42.15A creates a conditional entitlement that, where a defendant obtains a judgment no less favourable than that which they had offered, indemnity costs, calculated to begin from the date on which the offer was made, follow: Langdon at 84 [187].

15. The 10 May 2021 offer of compromise on which the Defendants rely to enliven UCPR r 42.15A stated, relevantly, as follows:

“… we are instructed to offer to settle the proceedings on the following basis:

1. Judgment for defendants; and

2. There be no order as to costs (consistent with UCPR 20.26(1)(a)(i))

This offer is made pursuant to Reg 20.26 of the Uniform Civil Procedure Rules 2005.

This offer is open for acceptance until 4:00pm on 7 June 2021, at which time it will close.

…

… The defendants consider they have good prospects of success and intend to recover costs from the plaintiff in the event they are successful in the proceedings.”

16. I am satisfied that the 10 May offer of compromise conformed with UCPR r 20.26. It makes clear that the Defendants’ purpose in making the offer was to resolve the whole of the claim; it sets out the terms on which the claim was to be resolved; and it proposed judgment in favour of the Defendants with no order as to costs. The closing date for acceptance was no less than 28 days after the date on which the offer was made.

17. I must next consider whether what was offered was truly a compromise. An offer of compromise will only justify an order for indemnity costs if it has a real element of compromise: Anderson Group Pty Ltd v Tynan Motors Pty Ltd (No 2) [2006] NSWCA 120 at [23] (Basten JA, Santow JA and Young CJ in Eq agreeing).

18. A “walk away” offer can in a particular case be a genuine offer of compromise, though regard must be had to the circumstances of the case: Leichhardt Municipal Council v Green [2004] NSWCA 341 at [27], [36]–[37] (Santow JA, Bryson and Stein JJA agreeing).

19. The Defendants’ 10 May 2021 offer reflected their optimism and confidence in the strength of their case. They noted several expert reports served on the Plaintiff in February 2021 and continued:

“All of the above reports are supportive of our clients’ defences and opine that our clients did not breach their respective duties of care owed to the Plaintiff.

The reports establish that our clients’ care of the plaintiff was consistent with the standard of a reasonable and prudent general practitioner acting to the standard of their peers at the time of each of the consultations. In light of these opinions, we are of the view that our clients’ defences are strong, and should this matter proceed to hearing, would be preferred by the Court, particularly given your client’s inconsistent reporting of his sexual history and his refusal to undergo testing.

Given the evidence to date, we are of the opinion that your client has poor prospects of succeeding. It is apparent from the opinions of these doctors that Dr Lynch’s opinion is based on hindsight bias, and what appears to be incorrect assumptions as to fact or incomplete medical records. For example, it appears that Dr Lynch was not provided (or did not consider) the entirety of the first defendant’s consultation notes, as he does not comment on the fact that the plaintiff declined ‘BBV testing’.”

20. The offer concluded:

“Finally, the defendants have collectively incurred approximately $66,691.00 in legal costs and disbursements to date. The defendants consider they have good prospects of success and intend to recover their costs from the plaintiff in the event they are successful in the proceedings. Consequently, the offer is not merely an offer that the plaintiff capitulate, but one in which the defendants are demonstrating a willingness to forego recovery of the significant costs incurred which they would be entitled to in the event of success.”

21. The offer shows that the Defendants were optimistic about the likely outcome. However, there are issues with the offer in the context of this application.

22. 10 May 2021 was quite early in proceedings. The matter had been on foot for seven months, the Plaintiff was legally represented and the Statement of Claim then on foot was entirely different from the one on which he relied at trial before me. There had been only two substantive directions hearings before the Registrar of the District Court.

23. Although the strength of the Defendants’ case is an important circumstance I must consider, neither the Defendants’ submissions nor affidavit evidence on the application detailed the circumstances of the case as of 10 May 2021. As I have said, the offer shows the Defendants’ optimism, but it is difficult on the available material to see whether that optimism was justified. It is therefore difficult for me to determine the strength of the Defendants’ case.

24. In any event, the Defendants’ offer stated that they had incurred costs of approximately $66,691.00. That is a substantial amount to forgo notwithstanding that judgment was to be entered in the Defendants’ favour. An offer to forgo substantial costs where the offeror could reasonably expect that costs would follow the event will generally involve an element of compromise: Bailey v Director-General, Department of Natural Resources NSW (2015) 213 LGERA 1; [2015] NSWCA 318 at 29 [116] (Basten JA, Gleeson and Leeming JJA agreeing).

25. I consider that, although the offer was made relatively early in proceedings, it was a genuine offer, not a tactical offer cynically to reap the benefits of potential costs consequences. I am satisfied that the offer contained a genuine compromise.

UCPR r 42.15A

26. As the Defendants obtained judgment no less favourable to them, they are, subject to the Court’s discretion to make some other order, entitled to indemnity costs from the date on which the offer was made. The onus of displacing that entitlement falls on the Plaintiff. The Court should only depart from a defendant’s entitlement arising from UCPR r 42.15A for good reasons, which generally only arise due to exceptional circumstances: Langdon at 84 [187].

27. There has been a reluctance to set out an exhaustive list of the relevant factors in considering whether to depart from the rule. Regardless, at least one of the considerations is the reasonableness of the offer and its refusal: Takacs (No 2) at [13]–[15] (Hodgson JA, McColl JA agreeing).

28. As set out in Miwa Pty Ltd v Siantan Properties Pty Ltd [2011] NSWCA 344 at [12] (Basten JA, McColl and Campbell JJA agreeing), in considering the Plaintiff’s reasonableness in refusing the offer I must take into account the following factors:

29. the state of the proceeding at which the offer was received;

30. the time afforded the offeree to consider the offer;

31. the extent of compromise offered;

32. the offeree’s prospects of success as at the time of the offer;

33. the clarity with which the offer was expressed; and

34. whether the offer foreshadowed an application for indemnity costs in the event of its rejection.

35. As I have already said, the offer was made at a relatively early stage of the proceedings and, other than the optimism contained in the Defendants’ offer, I am largely unable to assess their prospects at the time of the offer.

36. The offer allowed the Plaintiff 28 days to consider the offer and invited the Plaintiff to indicate if that was insufficient time. As I have said, an offer to forgo $66,691.00 involves a fairly significant compromise. The offer was perfectly clear and noted that, if the Court did not consider the offer to be an effective offer under the UCPR, the Defendants would rely upon it to make an application for indemnity costs pursuant to principles applicable to a Calderbank letter.

37. I am satisfied that in the circumstances, the Plaintiff’s rejection of the offer was unreasonable.

The Plaintiff’s submissions

32. The Plaintiff’s submissions, comprising his “draft” submissions and emails in the nature of submissions, can be divided into the following categories:

33. mental health/capacity;

34. ignorance of Court procedures;

35. financial necessity;

36. the public interest; and

37. personal circumstances.

38. These grounds can be dealt with relatively quickly.

39. First, the Plaintiff’s claims regarding his mental health include that he lost capacity to make decisions in November 2025, that an increase in his dose of “Quenterapine” (which I take to mean “Quetiapine”) to improve his sleep during the hearing led him to become less aware of risk, that he has become deluded about his life and capacity because he has been in denial about his changed physical circumstances and that the case was a method by which he coped with suicidal ideation and thoughts of self-harm.

40. These are serious matters. However, they do not take the Plaintiff’s costs argument very far. Even if I were, without evidence, to accept that he was without capacity to make decisions from November 2025, that does not answer why he did not accept the May 2021 offer. It also fails to answer why he did not accept the September 2021 and August 2025 offers. This submission does not assist the Plaintiff.

41. Secondly, the Plaintiff makes various submissions concerning Court procedures. He says that the Defendants did not indicate they intended to “obstruct” his evidence, that he was “surprised” by the Defendants’ application to exclude much of his evidence because he had not made those experts available for cross-examination, and that he did not realise that, in such circumstances, certain evidence could be excluded.

42. Although courts make allowances for self-represented litigants, those litigants are bound by the same duties as other litigants: Duraisamy v Sydney Trains [2019] NSWCA 269 at [25] (Bell P, Macfarlan and Payne JJA agreeing). There is no reason in the circumstances that the Plaintiff’s ignorance of the rules ought to make him immune to the consequences of non-compliance.

43. I note that the Plaintiff submits that the he only “understood” the problem of his experts’ non-attendance on the first day of the hearing. However, the Defendants requested the Plaintiff’s experts’ attendance in January 2026. That afforded him a great deal of time, even without legal representation, in which to investigate the nature and consequences of their request.

44. In any event, this submission fails to address the circumstances of the Plaintiff’s failure to accept the May 2021 offer. It does not assist him.

45. Thirdly, the Plaintiff makes various submissions concerning the financial necessity of the proceedings, sometimes describing himself as being under “duress”. I understand “duress” here to mean that he was compelled by his circumstances to proceed with the litigation, rather than the technical meaning described in Barton v Armstrong [1976] AC 104. In support of this submission, the Plaintiff makes certain claims about the conduct of his former solicitors with whom he is now engaged in litigation elsewhere. Ultimately, he describes his decision to continue proceedings as “trying to recover costs… via trial” and as “a desperate, irrational attempt” to remedy his personal circumstances.

46. An admission that he continued the proceedings for the ancillary purpose of assisting the Plaintiff in financing other proceedings is not of assistance, especially in circumstances where the solicitors (permanently) ceased acting for the Plaintiff in 2025 and the Defendants seek costs based on an offer sent in May 2021. Allegations concerning the conduct of his former solicitors are outside the scope of these proceedings. This submission fails.

47. Fourthly, the Plaintiff submits that he had formed the view that, if he did not continue proceedings, others would suffer in the same way. This is in essence a submission that the proceedings were in the public interest. Nothing before me provides the slightest support for that submission, and I do not accept it.

48. If the Plaintiff was concerned that others are being harmed by a medical misapprehension, he could have attempted to bring these proceedings as part of a class action. He did not do so. If the Plaintiff saw danger from a lack of clarity in the law of professional negligence, he had years to draw attention to any legal lacunae. He did not do so. There are innumerable avenues by which the Plaintiff could have agitated for social or political change to benefit vulnerable people. On the evidence before me, he took none of them.

49. Instead, he commenced proceedings for his private benefit. Those proceedings continued for several years. During those years, the Defendants endured the stress of these proceedings and the potential for immense professional damage.

50. For the Plaintiff to suggest that these proceedings were brought to protect others is without basis and contrary to known facts. This submission fails.

51. Fifthly, the Plaintiff points to several aspects of his personal circumstances as reasons the Court should have “mercy”. These include his impending insolvency, homelessness and the effect that a large sum of ordered costs will have on his life.

52. These are areas which may raise a degree of sympathy, but they misunderstand the nature and purpose of the costs discretion. As I have said at [9] above, costs orders are not a means to punish unsuccessful parties but to compensate successful parties for the costs they have incurred through the litigation. Legal proceedings come with the risk of costs. Although impecuniosity is no bar to a litigant, an impecunious litigant is not exempt from the consequences of their litigation. The Plaintiff’s financial position is not relevant to the proper exercise of the Court’s costs discretion in the circumstances.

53. I consider that the Plaintiff has failed to displace the Defendants’ entitlement to indemnity costs from 10 May 2021.

Gross sum costs order

49. The Defendants seek their costs be paid in a gross sum pursuant to CPA s 98(4)(c) in the amount of $298,261.8.

50. The Court has a broad discretion in determining an application of this kind. The Court of Appeal in Rahman v Rahman (No 2) [2025] NSWCA 266 at [61]–[64] (Payne, McHugh and Free JJA) summarised the relevant principles as follows:

“[61] A gross sum costs order can be made any time before costs are referred for assessment. Section 98 confers a wide discretion on the Court. The principles were stated by Beazley JA (as her Excellency then was) in Hamod at [813]-[820], see also Gabrielle v Abood (No 4) [2023] NSWCA 100 at [6] per Bell CJ, Kirk JA and Adamson JA.

[62] In Hamod, Beazley JA at [813] identified some of the factors which merit particular consideration, including the relative responsibility of the parties for the costs incurred, the degree of any disproportion between the issue litigated and the costs claimed, the complexity of proceedings in relation to their cost, and the capacity of the unsuccessful party to satisfy any costs liability.

[63] The power to award a lump sum should only be exercised when the Court considers that it can do so fairly between the parties and where an appropriate sum can be determined from the available materials: Harrison v Schipp (2002) 54 NSWLR 734 at 743; [2002] NSWCA 213 at [21]-[22]; Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at 123; [1995] FCA 350; Zepinic v Chateau Constructions (Aust) Ltd (No 2) [2014] NSWCA 99 at [28]-[29].

[64] A ‘broad brush’ approach is appropriate when a gross sum costs order is made. To require the same or a similar level of detail as in a formal costs assessment would defeat the purpose of the lump sum order: Auspine Ltd v Australian Newsprint Mills Ltd (1999) 93 FCR 1 at 5; [1999] FCA 673 per O’Loughlin J; Penson v Titan National Pty Ltd (No 3) [2015] NSWCA 121 at [7].”

51. Although the power to make such an order is in the Court’s discretion pursuant to CPA s 98, there must be a good reason to make it.

52. A gross sum costs order is warranted in these proceedings. First, the costs assessment process would be protracted and cause the Defendants further expense. This is especially significant in circumstances where the Plaintiff has shown a propensity to file lengthy, undirected evidence and submissions.

53. Secondly, the Plaintiff by his conduct is disproportionately responsible for the costs incurred in the matter. He filed large amounts of evidence, much of which was irrelevant to the issues in dispute. While he did, at certain points over several years, request that the matter be dealt with expeditiously, he also later wished to delay it.

54. Thirdly, the Defendants submit, and I accept, that the Plaintiff’s evidence of his own impecuniosity makes it highly unlikely that he would be able to meet the costs of an assessment.

55. Finally, I consider that the evidence provided by the Defendants’ solicitors is sufficient to enable the Court to determine an appropriate sum between the parties on a broad brush approach.

Quantum of costs

56. The $298,261.8 claimed by the Defendants comprises both costs incurred before 10 May 2021, which are calculated on the ordinary basis and with a 35% discount, and costs afterwards, which are on an indemnity basis with a 30% discount.

57. The total amount incurred by the Third Defendant as of 8 May 2026 was $247,956.17. Of that amount, $132,224.58 is solicitor/client fees and $115,731.59 in disbursements, including Counsel’s fees. The Third Defendant seeks that the Plaintiff be ordered to pay $152,945.51.

58. The total amount incurred by the Fourth Defendant as of 8 May 2026 was $237,993.07. Of that amount, $116,546.30 is solicitor/client fees and $121,446.77 in disbursements, including Counsel’s fees. The Fourth Defendant seeks that the Plaintiff be ordered to pay $145,316.28.

59. I consider that those figures are reasonable, especially having regard to the number of years for which these proceedings have been on foot and the significant amount of material which issued from the Plaintiff, including several amended versions of the Statement of Claim, which, in its final form, spanned some 300 paragraphs. I also consider that the proposed discount, being 35% for the costs incurred before 10 May 2021 and 30% for the costs incurred after, is generous.

Orders

60. I make the following order:

61. Order 2 of the orders made on 8 May 2026 is varied to read “The Plaintiff is to pay to the Third Defendant’s costs in the specified gross sum of $152,945.51 and the Fourth Defendant’s costs in the specified gross sum of $145,316.28.”

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