Zandata Pty Ltd v Riley [2013] NSWSC 49

Zandata Pty Ltd v Riley [2013] NSWSC 49

Rule 42.34 did not apply because the Terms of Settlement did not give Zandata a judgment against the defendants for less than $500,000; instead they provided for a verdict or final determination in favour of the defendants while requiring payment to Zandata. Viewed objectively, Zandata was the successful party because the solicitors admitted negligence and agreed to pay $441,500. The defendants' pre-litigation offer of $200,000 inclusive of costs was not reasonable because it was below even their own assessment of loss and did not include reasonable legal costs, so commencement of proceedings was not unreasonable. The pleaded additional negligence case and related expert evidence were...

Jurisdiction
Australia
Judgment Date
19 February 2013
Procedural Posture
Professional Negligence Proceedings; Costs Motion / Notice of Motion Dated 3 April 2012 After Terms of Settlement
Outcome
Notice of Motion dismissed; defendants ordered to pay Zandata's costs of the proceedings including the motion; gross sum costs assessment stood over for further evidence and directions.
Legal Topics
['costs Following the Event' 'uniform Civil Procedure Rules R 42.34' 'gross Sum Costs Order' 'pre Litigation Settlement Offers' "solicitors' Negligence in Lease Drafting"]
['civil Procedure' 'costs' 'professional Negligence' 'legal Practitioners'] ['costs Following the Event' 'uniform Civil Procedure Rules R 42.34' 'gross Sum Costs Order' 'pre Litigation Settlement Offers' "solicitors' Negligence in Lease Drafting"]

Case Brief

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Procedural Posture

Professional Negligence Proceedings; Costs Motion / Notice of Motion Dated 3 April 2012 After Terms of Settlement

Legal Issues

  1. 1 ['Whether Uniform Civil Procedure Rules r 42.34 prevented or affected an order for costs because the settlement amount was less than $500,000.' 'Which party was successful for the purpose of the ordinary rule that costs follow the event.' 'Whether Zandata commenced or continued the proceedings unreasonably, or incurred costs unreasonably, by pleading an additional allegation of negligence and obtaining expert evidence.' 'Whether the Court should make a specified gross sum costs order instead of leaving costs to assessment.']

Ratio Decidendi

Rule 42.34 did not apply because the Terms of Settlement did not give Zandata a judgment against the defendants for less than $500,000; instead they provided for a verdict or final determination in favour of the defendants while requiring payment to Zandata. Viewed objectively, Zandata was the successful party because the solicitors admitted negligence and agreed to pay $441,500. The defendants' pre-litigation offer of $200,000 inclusive of costs was not reasonable because it was below even their own assessment of loss and did not include reasonable legal costs, so commencement of proceedings was not unreasonable. The pleaded additional negligence case and related expert evidence were...

Court Disposition

Notice of Motion dismissed; defendants ordered to pay Zandata's costs of the proceedings including the motion; gross sum costs assessment stood over for further evidence and directions.

Orders

  • ['Notice of Motion dated 3 April 2012 dismissed.' "Defendants to pay the plaintiff's costs of the proceedings, including the Notice of Motion." 'Plaintiff to file and serve by 4pm on 12 March 2013, all further affidavits, if any, that it wishes to rely upon.' 'Defendants to file and serve by 4pm on 26 March 2013,...