Spiliotopoulos v National Australia Bank Limited

1. [1]

   HIS HONOUR: On 21 July 2017, I published my reasons for judgment in an application by two of the defendants to dismiss part of Mr Spiliotopoulos’ claim: see Spiliotopoulos v National Australia Bank Ltd [2017] NSWSC 971. I made the following orders:

   1. (1)

      Dismiss the proceedings against the first defendant and the third defendant with costs.

   2. (2)

      Dismiss the plaintiff’s application to replead.

2. [2]

   By her notice of motion filed on 4 August 2017, Ms Jackson seeks an order that her costs after 20 August 2016 be paid on an indemnity basis. That application proceeds in accordance with UCPR 20.26 and is based upon an offer of compromise made by her solicitor Lisa Boler on 19 August 2016. That offer is relevantly in the following terms:

3. [3]

   Mr Spiliotopoulos’ solicitor Robert Haralovic replied on 25 August 2016 in these terms:

4. [4]

   The offer was not accepted and it lapsed.

5. [5]

   Ms Jackson made the following submissions:

   1. (1)

      The offer complied with UCPR 20.26(2)(a)(i): it refers to the “entirety of your client’s claim.”

   2. (2)

      The offer proposes an order that the “proceedings against the Third Defendant be dismissed,” in compliance with UCPR 20.26(2)(a)(ii).

   3. (3)

      The offer does not include an amount for costs and is not expressed to be inclusive of costs, in compliance with UCPR 20.26(2)(c).

   4. (4)

      The offer bears a statement that it is made in accordance with the rules, in compliance with UCPR 20.26(2)(d).

   5. (5)

      The offer specifies that it is open for acceptance for a period of 28 days, in compliance with UCPR 20.26(2)(f).

6. [6]

   Pursuant to UCPR 42.15A, subject to any matters that Mr Spiliotopoulos might raise in opposition, Ms Jackson is entitled to costs on an indemnity basis from the day following the day on which the offer was made, because the orders made in her favour by me on 21 July 2017 dismissing the claim against her “with costs” is a result that is “no less favourable to [her] than the terms of the offer” made by Ms Jackson on 19 August 2016.

7. [7]

   Mr Haralovic agreed that the matter should be dealt with on the papers. He provided me with the following written submissions:

8. [8]

   These submissions were later supplemented with what is described as a short note as to costs. That document is in the following relevant terms:

9. [9]

   Mr Spiliotopoulos has referred to his affidavit sworn on 13 September 2015. I have had specific regard to that affidavit and the parts of it to which Mr Haralovic has directed particular attention. That affidavit was prepared for a different purpose. It says nothing about costs. It could obviously have nothing directly to say about an offer of compromise made a year after it was sworn.

10. [10]

    The burden of Mr Spiliotopoulos’ response to the present application appears to be that a level of co-operation by Ms Jackson with him some time earlier may well have avoided the commencement of the proceedings against Ms Jackson altogether. In other words, he asserts that Ms Jackson was in effect the author of her own position as a defendant in the ill-fated proceedings. Unfortunately, that contention is simply wrong. Nothing in the pre-trial correspondence between Mr Haralovic or Mr Spiliotopoulos and Ms Jackson or her solicitor could give rise to any such suggestion. Mr Spiliotopoulos commenced proceedings against Ms Jackson that were destined to fail and he did not accept an offer to discontinue them against her when the opportunity presented itself.

11. [11]

    I accept that an offer that amounts to an ultimatum to capitulate may in some circumstances not qualify as an offer to compromise in any real or meaningful sense. In my view that cannot apply to this case where Ms Jackson had nothing to fear, and therefore nothing with respect to which she ought to feel the need to bargain, from the outcome of the proceedings against her. If it were otherwise Ms Jackson would have been the victim of an opportunistic suit to which her only response could have been to offer something to avoid the litigation that Mr Spiliotopoulos was never going to recover if the case proceeded to trial. Ms Jackson’s success on her strike out application is an obvious vindication of the reasonableness of the offer of compromise that she made.

12. [12]

    I have no perception of what else Mr Spiliotopoulos may want to say in opposition to the present application. The offer of compromise was valid. It did not amount to a demand that Mr Spiliotopoulos discontinue proceedings in which there may have resided some remnant of possible success. The proceedings were always unmeritorious. Ms Jackson’s offer of compromise reflected that fact.

Orders

1. [13]

   In these circumstances:

   1. (1)

      I order the plaintiff to pay the third defendant’s costs on an ordinary basis up to and including 20 August 2016 and thereafter on an indemnity basis.

   2. (2)

      I order the plaintiff to pay the third defendant’s costs of this application on an ordinary basis.