DCT v Bowen & Anor [1999] NSWSC 881

DCT v Bowen & Anor [1999] NSWSC 881

The defendants' faxed offer of 12 August 1999 was accepted by the plaintiff on 13 August 1999 and the relevant subject matter did not materially change between offer and acceptance, so there was a binding contract that the plaintiff pay the defendants' costs fixed at $25,000. Properly construed in context, the agreement covered costs incurred up to and including 12 August 1999 but did not subsume Registrar Berecry's existing interlocutory costs order. For costs incurred after 12 August 1999, the appropriate exercise of discretion was that each party bear its own costs, given the mixed character of the matter as between abandonment and settlement and the defendants' failure on their...

Jurisdiction
Australia
Judgment Date
17 August 1999
Procedural Posture
Equity Proceedings to Enforce a Claim to Proceeds of Property / Judgment on Costs After Proceedings Did Not Proceed to Hearing and Orders Disposing of the Proceedings Were Fashioned by Agreement
Outcome
Agreement as to costs binding; no order as to costs not subject of agreement.
Legal Topics
['costs of Settled or Abandoned Proceedings' 'binding Compromise as to Costs' 'interlocutory Costs Orders' 'construction of Costs Agreement' 'indemnity Costs']
['procedure' 'civil Litigation' 'costs'] ['costs of Settled or Abandoned Proceedings' 'binding Compromise as to Costs' 'interlocutory Costs Orders' 'construction of Costs Agreement' 'indemnity Costs']

Case Brief

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Procedural Posture

Equity Proceedings to Enforce a Claim to Proceeds of Property / Judgment on Costs After Proceedings Did Not Proceed to Hearing and Orders Disposing of the Proceedings Were Fashioned by Agreement

Legal Issues

  1. 1 ["Whether negotiations between the plaintiff and defendants resulted in a binding compromise that the plaintiff pay the defendants' costs fixed at $25,000." 'Whether the $25,000 costs compromise included costs payable under a subsisting interlocutory order made by Registrar Berecry.' 'What order should be made for costs incurred after 12 August 1999.' 'Whether indemnity costs should be ordered.']

Ratio Decidendi

The defendants' faxed offer of 12 August 1999 was accepted by the plaintiff on 13 August 1999 and the relevant subject matter did not materially change between offer and acceptance, so there was a binding contract that the plaintiff pay the defendants' costs fixed at $25,000. Properly construed in context, the agreement covered costs incurred up to and including 12 August 1999 but did not subsume Registrar Berecry's existing interlocutory costs order. For costs incurred after 12 August 1999, the appropriate exercise of discretion was that each party bear its own costs, given the mixed character of the matter as between abandonment and settlement and the defendants' failure on their...

Court Disposition

Agreement as to costs binding; no order as to costs not subject of agreement.

Orders

  • ["The plaintiff is to pay the defendants' costs of the proceedings in the sum of $25,000." 'Each party is to bear its own costs of the proceedings after 12 August 1999.' 'Mr Karageorge is directed to deliver to the plaintiff and to the Associate on or before 24 August 1999 a form of the second cross claim which he...