E M Baldwin & Sons Ltd v Plane & Anor; Jsekarb Pty Ltd v Plane & Anor (Costs judgment) [1999] NSWCA 130

E M Baldwin & Sons Ltd v Plane & Anor; Jsekarb Pty Ltd v Plane & Anor (Costs judgment) [1999] NSWCA 130

Jsekarb's failure to accept the 2 March 1998 offer within the brief period for which it was open, and its conduct after 11 March 1998, did not justify indemnity costs from those dates because of the circumstances of the ongoing Tribunal hearing, Jsekarb's perceived prospects, costs already incurred, the need for overseas expert witnesses, and the lack of a formal offer available for acceptance after 11 March. However, after Mr Plane's 30 June 1998 offer to accept $130,000 plus costs, Baldwin and Jsekarb were exposed to a result considerably more favourable to Mr Plane's estate and there was no sufficient reason to exclude the present motions, so costs payable to the estate after 30 June...

Jurisdiction
Australia
Judgment Date
12 May 1999
Procedural Posture
Costs Judgment / Motions in the New South Wales Court of Appeal Concerning Costs After the Dust Diseases Tribunal Proceedings and the Appeal
Outcome
Baldwin's motion was dismissed with costs; Baldwin and Jsekarb were ordered to pay the costs of Mr Plane's estate's motions; costs ordered to be paid by Baldwin and Jsekarb to Mr Plane's estate incurred after 30 June 1998 were to be assessed on an indemnity basis.
Legal Topics
['indemnity Costs' 'offers of Compromise' 'just and Equitable Basis' "reasonableness of Party's Attitude to Offers of Compromise" 'dust Diseases Litigation']
['civil Procedure' 'costs'] ['indemnity Costs' 'offers of Compromise' 'just and Equitable Basis' "reasonableness of Party's Attitude to Offers of Compromise" 'dust Diseases Litigation']

Case Brief

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Procedural Posture

Costs Judgment / Motions in the New South Wales Court of Appeal Concerning Costs After the Dust Diseases Tribunal Proceedings and the Appeal

Legal Issues

  1. 1 ["Whether Mr Plane's estate was entitled to costs against Baldwin and Jsekarb assessed on an indemnity basis from 5pm on 2 March 1998, from 5pm on 11 March 1998, or from 30 June 1998." "Whether Jsekarb's failure to accept or attitude to compromise proposals justified indemnity costs after 2 March 1998 or 11 March 1998." "Whether Baldwin and Jsekarb should pay indemnity costs of the appeal after Mr Plane's 30 June 1998 offer to accept $130,000 plus costs." "What orders should be made on Baldwin's motion and Mr Plane's estate's motions filed in February 1999."]

Ratio Decidendi

Jsekarb's failure to accept the 2 March 1998 offer within the brief period for which it was open, and its conduct after 11 March 1998, did not justify indemnity costs from those dates because of the circumstances of the ongoing Tribunal hearing, Jsekarb's perceived prospects, costs already incurred, the need for overseas expert witnesses, and the lack of a formal offer available for acceptance after 11 March. However, after Mr Plane's 30 June 1998 offer to accept $130,000 plus costs, Baldwin and Jsekarb were exposed to a result considerably more favourable to Mr Plane's estate and there was no sufficient reason to exclude the present motions, so costs payable to the estate after 30 June...

Court Disposition

Baldwin's motion was dismissed with costs; Baldwin and Jsekarb were ordered to pay the costs of Mr Plane's estate's motions; costs ordered to be paid by Baldwin and Jsekarb to Mr Plane's estate incurred after 30 June 1998 were to be assessed on an indemnity basis.

Orders

  • ["Baldwin's motion filed 1 February 1999 be dismissed with costs." "Baldwin and Jsekarb pay the costs of the motions by Mr Plane's estate filed 2 February 1999." "Costs ordered to be paid by Baldwin and Jsekarb to Mr Plane's estate incurred after 30 June 1998 be assessed on an indemnity basis."]