Vagg v McPhee (No 2) [2012] NSWSC 187

Vagg v McPhee (No 2) [2012] NSWSC 187

Having refused a genuine offer of compromise made by the defendants, and not succeeded at trial, the plaintiffs failed to establish exceptional circumstances warranting a departure from the usual rule; costs are awarded on an ordinary basis up to the date of the offer and on an indemnity basis thereafter.

Parties
First Plaintiff: Margaret Doreen Vagg; Second Plaintiff: Benjamin John Vagg; Third Plaintiff: Julia Lillian Vagg; Fourth Plaintiff: Cecilia Anne Vagg; Fifth Plaintiff: James Gregory Vagg; First Defendant: Paul McPhee; Second Defendant: Trevor Cork; Third Defendant: David Dunkley; Fourth Defendant: Steven Nicholson
Jurisdiction
Australia
Judgment Date
07 March 2012
Procedural Posture
Costs Application / Post Trial, Costs Determination
Outcome
Costs orders in favour of defendants; indemnity costs awarded after rejection of offer of compromise.
Legal Topics
Indemnity Costs, Offer of Compromise, Calderbank Offers, Costs Following the Event, Uniform Civil Procedure Rules 2005 R 42.15 a
Costs Indemnity Costs Offer of Compromise Calderbank Offers Costs Following the Event Uniform Civil Procedure Rules 2005 R 42.15 a

Case Brief

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Parties

Margaret Doreen Vagg

First Plaintiff

Benjamin John Vagg

Second Plaintiff

Julia Lillian Vagg

Third Plaintiff

Cecilia Anne Vagg

Fourth Plaintiff

James Gregory Vagg

Fifth Plaintiff

Paul McPhee

First Defendant

Trevor Cork

Second Defendant

David Dunkley

Third Defendant

Steven Nicholson

Fourth Defendant

Procedural Posture

Costs Application / Post Trial, Costs Determination

Legal Issues

  1. 1 Whether costs should be ordered on an indemnity basis after rejection of a genuine walk-away offer of compromise under Uniform Civil Procedure Rules 2005 r 42.15A
  2. 2 Whether exceptional circumstances exist to depart from the usual rule that costs follow the event

Ratio Decidendi

Having refused a genuine offer of compromise made by the defendants, and not succeeded at trial, the plaintiffs failed to establish exceptional circumstances warranting a departure from the usual rule; costs are awarded on an ordinary basis up to the date of the offer and on an indemnity basis thereafter.

Court Disposition

Costs orders in favour of defendants; indemnity costs awarded after rejection of offer of compromise.

Orders

  • The plaintiffs pay the defendants costs of the proceedings on an ordinary basis from 1 March 2009 to 10 October 2011.
  • The plaintiffs pay the defendants costs of the proceedings on an indemnity basis after 11 October 2011.