State of NSW v Tyszyk (No. 2) [2008] NSWCA 180

State of NSW v Tyszyk (No. 2) [2008] NSWCA 180

The State was entitled to indemnity costs from the day after serving its Offer of Compromise because it obtained a result no less favourable than the offer, in accordance with UCPR r 42.14. No reason was found to order otherwise, despite a new 'no duty' argument being run and not adopted by the majority. As to the court below, an indemnity costs order was also appropriate from the day after service of a prior Offer of Compromise because the State did better than the terms of its offer. A Calderbank offer sent the day before trial was not found to affect costs due to insufficient time for consideration.

Parties
Appellant/first Cross Respondent: State of New South Wales; Respondent/cross Appellant: John Tyszyk; Second Cross Respondent: Kanimbla Hall Limited
Jurisdiction
Australia
Judgment Date
08 August 2008
Procedural Posture
Appeal and Cross Appeal / Post Judgment; Determination of Costs
Outcome
Orders for costs made in favour of the Appellant (State of New South Wales: ordinary basis to specified dates, then indemnity basis from specified dates) for the appeal, cross-appeal, and proceedings below.
Legal Topics
Costs, Offers of Compromise, Indemnity Costs, Uniform Civil Procedure Rules, Calderbank Offers
Civil Procedure Costs Offers of Compromise Indemnity Costs Uniform Civil Procedure Rules Calderbank Offers

Case Brief

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Parties

State of New South Wales

Appellant/first Cross Respondent

John Tyszyk

Respondent/cross Appellant

Kanimbla Hall Limited

Second Cross Respondent

Procedural Posture

Appeal and Cross Appeal / Post Judgment; Determination of Costs

Legal Issues

  1. 1 Whether indemnity costs should be awarded due to Offer of Compromise and Calderbank offer under Uniform Civil Procedure Rules
  2. 2 Whether costs of appeal, cross-appeal, and court below should be awarded on ordinary or indemnity basis

Ratio Decidendi

The State was entitled to indemnity costs from the day after serving its Offer of Compromise because it obtained a result no less favourable than the offer, in accordance with UCPR r 42.14. No reason was found to order otherwise, despite a new 'no duty' argument being run and not adopted by the majority. As to the court below, an indemnity costs order was also appropriate from the day after service of a prior Offer of Compromise because the State did better than the terms of its offer. A Calderbank offer sent the day before trial was not found to affect costs due to insufficient time for consideration.

Court Disposition

Orders for costs made in favour of the Appellant (State of New South Wales: ordinary basis to specified dates, then indemnity basis from specified dates) for the appeal, cross-appeal, and proceedings below.

Orders

  • Respondent to pay costs of the Appellant of the appeal, and of the cross-appeal: (a) on the ordinary basis to and including 27 June 2007, and (b) on the indemnity basis from the start of 28 June 2007.
  • Respondent to pay the Appellant's costs in the court below: (a) on the ordinary basis to and including 21 September 2006, and (b) on the indemnity basis from the start of 22 September 2006.