Levy v Bergseng (No 2) [2008] NSWSC 958

Levy v Bergseng (No 2) [2008] NSWSC 958

The plaintiff was not entitled to indemnity costs because the 21 June 2007 offer, although a true compromise and bettered by the judgment, proposed that each party bear its own costs and therefore was not exclusive of costs as required for an effective offer of compromise; it also was not to be treated as a Calderbank offer because it was framed only as an offer under the Rules and there was no inference it was intended to operate otherwise. The plaintiff was entitled to costs of preparing the reply submission before the Costs Review Panel because the defendants' submissions should not have been received absent a determination but the plaintiff reasonably responded to them. Interest was...

Jurisdiction
Australia
Judgment Date
17 September 2008
Procedural Posture
Appeal Concerning Costs Assessment Under the Legal Profession Act 2004 / Consequential Costs Orders Following the Earlier Judgment in Levy V Bergseng [2008] NSWSC 294
Outcome
Application for indemnity costs dismissed; orders varied to add costs of the plaintiff's reply submission before the Costs Review Panel and interest on costs paid.
Legal Topics
['indemnity Costs' 'offer of Compromise' 'calderbank Offer' 'costs Review Panel' 'interest on Costs']
['costs' 'legal Profession'] ['indemnity Costs' 'offer of Compromise' 'calderbank Offer' 'costs Review Panel' 'interest on Costs']

Case Brief

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Procedural Posture

Appeal Concerning Costs Assessment Under the Legal Profession Act 2004 / Consequential Costs Orders Following the Earlier Judgment in Levy V Bergseng [2008] NSWSC 294

Legal Issues

  1. 1 ["Whether the plaintiff's 21 June 2007 offer entitled him to indemnity costs after obtaining a better result in the appeal." 'Whether the offer complied with the Uniform Civil Procedure Rules requirement that an offer of compromise be exclusive of costs.' 'Whether the offer should be treated as a Calderbank offer if it was ineffective under the Rules.' "Whether the defendants should pay the plaintiff's costs of preparing the submission in reply before the Costs Review Panel." 'Whether the plaintiff should receive interest on amounts paid as costs.']

Ratio Decidendi

The plaintiff was not entitled to indemnity costs because the 21 June 2007 offer, although a true compromise and bettered by the judgment, proposed that each party bear its own costs and therefore was not exclusive of costs as required for an effective offer of compromise; it also was not to be treated as a Calderbank offer because it was framed only as an offer under the Rules and there was no inference it was intended to operate otherwise. The plaintiff was entitled to costs of preparing the reply submission before the Costs Review Panel because the defendants' submissions should not have been received absent a determination but the plaintiff reasonably responded to them. Interest was...

Court Disposition

Application for indemnity costs dismissed; orders varied to add costs of the plaintiff's reply submission before the Costs Review Panel and interest on costs paid.

Orders

  • ['The application for indemnity costs is dismissed.' 'The orders of 4 April 2008 in this matter be varied by adding two new orders: "(viii) the defendants pay the plaintiff\'s costs of the preparation of the submission in reply before the Costs Review Panel; (ix) the defendants shall pay interest on any amount paid...