Chelliah v NSW Police (No.2)

1. [1]

   On 14 May 2018, for the reasons there expressed, I dismissed the proceedings brought by the plaintiff on a Further Amended Summons filed 14 December 2017: Chelliah v NSW Police [2018] NSWSC 557 (“the first judgment”).

2. [2]

   I ordered the plaintiff to pay the first and second defendant’s costs of the proceedings. At the time judgment was delivered, counsel for the second defendant indicated that the second defendant wished to make a further application for costs.

3. [3]

   Directions were made with respect to the making and determination on the papers of such an application, including that the plaintiff provide the Court with any submissions by 12 June 2018.

Notice of Motion and Evidence

1. [4]

   On 25 May 2018, the second defendant, Mrs Hall, filed a Notice of Motion seeking the following orders:

2. [5]

   In support of that Notice of Motion, the solicitors for the second defendant placed before the Court two letters which they had written.

3. [6]

   The first letter was dated 22 February 2018. It was addressed to the solicitors for the plaintiff, and was sent by email as well as by ordinary post. It included the following offer (“the Offer”):

4. [7]

   The solicitors for the second defendant did not receive any response from the solicitors for the plaintiff to that correspondence.

5. [8]

   The second letter which was tendered was dated 15 May 2018, and put to the solicitors for the plaintiff an offer to resolve the orders for costs now being sought, in the Notice of Motion.

Second Defendant’s Submissions

1. [9]

   The second defendant submitted that the Offer in the letter of 22 February 2018, complies with r 20.26 of the Uniform Civil Procedure Rules 2005 (“UCPR”). The second defendant noted that the Offer refers to the entirety of the claim and proposed that the appeal by the plaintiff be withdrawn. It does not include an amount for costs and it bears the statement required by that rule.

2. [10]

   The second defendant’s submissions note that because the Offer was made within two months of the date set down for hearing, it was not required to be kept open for 28 days, but that the period allowed of only one week was reasonable in all the circumstances: UCPR, r 20.26(5)(b).

3. [11]

   The second defendant then submitted that, pursuant to the provisions of r 42.15A of the UCPR, she is entitled to costs on an indemnity basis because the orders made in favour of the second defendant by the Court on 14 May 2018, by which the plaintiff’s claim was dismissed and an order for the plaintiff to pay the second defendant’s costs was made, were “… no less favourable to [the second defendant] than the terms of the offer …”.

Plaintiff’s Submissions

1. [12]

   No written submissions were received from the plaintiff in accordance with the directions given by the Court on 14 May 2018. Nevertheless, the Court must still be satisfied that it is appropriate to make the orders sought by the Second Defendant.

Discernment

1. [13]

   The first judgment dealt with a Further Amended Summons by which the plaintiff sought to appeal from a judgment of the Local Court delivered on 18 July 2017.

2. [14]

   The Local Court had held that the motor vehicle the subject of the proceedings ought be returned to the second defendant and that there was no obligation on the second defendant to pay the plaintiff any monies at all.

3. [15]

   The judgment of the Local Court dealt comprehensively with the claims made by the plaintiff.

4. [16]

   The submissions placed before this Court at the hearing which led to the first judgment largely replicated the issues dealt with by the Local Court, and sought to persuade this Court that the determination of those issues by the Local Court was legally erroneous.

5. [17]

   This Court reached the same conclusion as that of the Local Court. The appeal to this Court was brought as of right on questions of law. No leave was sought to challenge any finding of mixed fact and law.

6. [18]

   Because the legal issues in the appeal to this Court were the same as those dealt with in the Local Court, the plaintiff was in a position on 22 February 2018, when he received the letter containing the Offer, to have a clear understanding and appreciation of the issues in the proceedings, and the merits of the claims which he was making.

7. [19]

   On the day the Offer was made, the plaintiff received a copy of the second defendant’s submissions to this Court. Those submissions were not lengthy and could readily have been understood and appreciated by the plaintiff and his lawyers on the day they were served, because of the nature of the proceedings in the Local Court. These submissions contained no new arguments of substance.

8. [20]

   In those circumstances, I am satisfied that the period of seven days for which the Offer was left open, was, in all of the circumstances, a reasonable period.

9. [21]

   By reference to the orders made by this Court in the first judgment, in which the plaintiff was ordered to pay the second defendant’s costs, I am satisfied that the second defendant has obtained an order in the proceedings which is no less favourable to her than the terms of the Offer that was made on 22 February 2018.

10. [22]

    It follows that by application of the provisions of r 42.15A of the UCPR, the orders set out in the Notice of Motion of 25 May 2018 ought be made.

Costs of the Notice of Motion

1. [23]

   As the second defendant has been entirely successful on the Notice of Motion, she should receive her costs, unless the Court is persuaded that the bringing of the Notice of Motion was in some way unreasonable.

2. [24]

   In my view it was not unreasonable. The letter of 15 May 2018 invited the plaintiff to agree to the orders later sought in the Notice of Motion. No response was received to that invitation.

3. [25]

   In those circumstances, the second defendant had no choice but to file and proceed with this Notice of Motion.

4. [26]

   The plaintiff should pay the second defendant’s costs of the Notice of Motion.

Orders

1. [27]

   I make the following orders:

   1. (1)

      The plaintiff to pay the costs of the second defendant on an ordinary basis up to and including 22 February 2018.

   2. (2)

      The plaintiff to pay the costs of the second defendant on an indemnity basis from 23 February 2018.

   3. (3)

      The plaintiff is to pay the second defendant’s costs of and associated with the Notice of Motion filed on 25 May 2018.