Alceon Group Pty Ltd v Rose (No 2) [2015] NSWSC 1325

Alceon Group Pty Ltd v Rose (No 2) [2015] NSWSC 1325

The plaintiff is not entitled to indemnity costs against the first defendant because the offer of compromise was made jointly to both defendants and was not capable of acceptance by the first defendant alone. The costs to be paid are on the ordinary basis. In relation to the second defendant, although she pleaded failed defences, she did not rely on them at trial, and awarding costs against her for those failed defences would create a duplicate recovery for the plaintiff, which is not permissible.

Jurisdiction
Australia
Judgment Date
11 September 2015
Procedural Posture
Costs Application / Post Trial / Costs Determination
Outcome
Orders as to costs granted
Legal Topics
['costs' 'offer of Compromise' 'indemnity Costs' 'ordinary Costs']
['civil Procedure'] ['costs' 'offer of Compromise' 'indemnity Costs' 'ordinary Costs']

Case Brief

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Procedural Posture

Costs Application / Post Trial / Costs Determination

Legal Issues

  1. 1 ['Whether the plaintiff is entitled to indemnity costs against the first defendant under Uniform Civil Procedure Rules 2005 (NSW) 20.26 and 42.14 due to a rejected offer of compromise' 'Whether any special order for costs should be made as between the plaintiff and the second defendant given partial success and failed defences']

Ratio Decidendi

The plaintiff is not entitled to indemnity costs against the first defendant because the offer of compromise was made jointly to both defendants and was not capable of acceptance by the first defendant alone. The costs to be paid are on the ordinary basis. In relation to the second defendant, although she pleaded failed defences, she did not rely on them at trial, and awarding costs against her for those failed defences would create a duplicate recovery for the plaintiff, which is not permissible.

Court Disposition

Orders as to costs granted

Orders

  • ['The first defendant pay the costs of the plaintiff assessed on the ordinary basis' 'The plaintiff pay the costs of the second defendant']