Thiess Pty Ltd v Dobbins Contracting Pty Ltd (No 2) [2016] NSWSC 547

Thiess Pty Ltd v Dobbins Contracting Pty Ltd (No 2) [2016] NSWSC 547

The offer of compromise provided a reasonable time for acceptance in the circumstances. Parties had recently mediated, were well aware of relevant factual and legal issues, and could assess expert evidence. The plaintiffs failed to accept the offer, and there is no reason for the Court to order otherwise. The plaintiffs must pay the second defendant's costs on the ordinary basis up to 1 February 2016, and on the indemnity basis thereafter under UCPR r 42.15A.

Parties
First Plaintiff: Thiess Pty Ltd; Second Plaintiff: Hunter Valley Earthmoving Co Pty Ltd; First Defendant: Dobbins Contracting Pty Ltd; Second Defendant: Daryl Stuart Bate
Jurisdiction
Australia
Judgment Date
04 May 2016
Procedural Posture
Damages Claim Arising From Destruction of Equipment by Fire, Costs Application / Post Trial Costs Determination
Outcome
Plaintiffs ordered to pay second defendant's costs — ordinary basis to 1 February 2016; indemnity basis thereafter.
Legal Topics
Costs, Offer of Compromise, Indemnity Costs, Reasonable Time for Acceptance
Civil Procedure Costs Offer of Compromise Indemnity Costs Reasonable Time for Acceptance

Case Brief

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Parties

Thiess Pty Ltd

First Plaintiff

Hunter Valley Earthmoving Co Pty Ltd

Second Plaintiff

Dobbins Contracting Pty Ltd

First Defendant

Daryl Stuart Bate

Second Defendant

Procedural Posture

Damages Claim Arising From Destruction of Equipment by Fire, Costs Application / Post Trial Costs Determination

Legal Issues

  1. 1 Whether the second defendant is entitled to indemnity costs under UCPR r 42.15A based on an offer of compromise
  2. 2 Whether the offer allowed a reasonable time for acceptance under UCPR r 20.26(5)(b)
  3. 3 Whether the Court ought 'otherwise order' in the circumstances

Ratio Decidendi

The offer of compromise provided a reasonable time for acceptance in the circumstances. Parties had recently mediated, were well aware of relevant factual and legal issues, and could assess expert evidence. The plaintiffs failed to accept the offer, and there is no reason for the Court to order otherwise. The plaintiffs must pay the second defendant's costs on the ordinary basis up to 1 February 2016, and on the indemnity basis thereafter under UCPR r 42.15A.

Court Disposition

Plaintiffs ordered to pay second defendant's costs — ordinary basis to 1 February 2016; indemnity basis thereafter.

Orders

  • Costs paid by plaintiffs to second defendant assessed on ordinary basis up to and including 1 February 2016, and on the indemnity basis thereafter.