JKB Holdings Pty Ltd v de la Vega (No 5) [2012] NSWSC 1238

JKB Holdings Pty Ltd v de la Vega (No 5) [2012] NSWSC 1238

The offers made by the plaintiffs were invalid under UCPR as offers of compromise due to non-exclusivity of costs, and did not constitute Calderbank offers as they lacked clarity of that intention. The plaintiffs' and defendants' competing claims on costs required apportionment, with plaintiffs not to recover costs of affidavits not relied on. The appropriate amount of $712,003 was to be paid out to plaintiffs, with part paid into a controlled money account. The balance of funds to remain in court pending costs assessment or agreement.

Parties
First Plaintiff: JKB Holdings Pty Ltd; Second Plaintiff: Jason Schwede; Third Plaintiff: Karen Elizabeth Schwede; First Defendant: Alejandro Jose de la Vega; Second Defendant: Lynette Margaret de la Vega
Jurisdiction
Australia
Judgment Date
28 September 2012
Procedural Posture
Consequential Orders / Post Judgment Determination of Amount, Costs, and Payment Out of Funds
Outcome
Judgment for the plaintiffs for $712,003; specified costs orders and directions regarding payment out and retention of funds in court.
Legal Topics
Costs, Offers of Compromise, Calderbank Offers, Money Paid Into Court
Civil Procedure Equity Costs Offers of Compromise Calderbank Offers Money Paid Into Court

Case Brief

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Parties

JKB Holdings Pty Ltd

First Plaintiff

Jason Schwede

Second Plaintiff

Karen Elizabeth Schwede

Third Plaintiff

Alejandro Jose de la Vega

First Defendant

Lynette Margaret de la Vega

Second Defendant

Procedural Posture

Consequential Orders / Post Judgment Determination of Amount, Costs, and Payment Out of Funds

Legal Issues

  1. 1 Proper calculation of judgment sum and interest
  2. 2 Entitlement to and apportionment of costs
  3. 3 Validity and effect of offers of compromise under UCPR

Ratio Decidendi

The offers made by the plaintiffs were invalid under UCPR as offers of compromise due to non-exclusivity of costs, and did not constitute Calderbank offers as they lacked clarity of that intention. The plaintiffs' and defendants' competing claims on costs required apportionment, with plaintiffs not to recover costs of affidavits not relied on. The appropriate amount of $712,003 was to be paid out to plaintiffs, with part paid into a controlled money account. The balance of funds to remain in court pending costs assessment or agreement.

Court Disposition

Judgment for the plaintiffs for $712,003; specified costs orders and directions regarding payment out and retention of funds in court.

Orders

  • Direct that $712,003 be paid out by the Registry to the first and third plaintiffs on 3 October 2012, with $262,003 of this to be paid into a controlled money account.
  • Plaintiffs' costs not to include costs of the third plaintiff's affidavit, nor half the costs of the second plaintiff's affidavit of 18 September 2011.