Locke v Bova & Anor [No 2] [2005] NSWSC 799

Locke v Bova & Anor [No 2] [2005] NSWSC 799

The defendants did not establish a discretionary basis to displace the plaintiff's prima facie entitlement to indemnity costs under Pt 52A r 22(4). At the time of the offer of compromise, the defendants had material showing chronic post-traumatic stress disorder, major depression, ongoing disability and only limited return to emergency medicine, so the later failure to resume full-time work and the enlargement of the future economic loss claim were foreseeable and were not a change that made indemnity costs inappropriate. In any event, the later Calderbank offer was reasonable and its rejection was unreasonable.

Jurisdiction
Australia
Judgment Date
10 August 2005
Procedural Posture
Application for Indemnity Costs / Motion After Judgment for the Plaintiff and After Dismissal of the Defendants' Appeal
Outcome
Plaintiff awarded indemnity costs after 13 November 2002 and costs of the Motion.
Legal Topics
['indemnity Costs' 'offer of Compromise' 'calderbank Offer' 'discretion to Otherwise Order' 'realistic Assessment of Litigation Risk']
['civil Procedure' 'costs' 'professional Negligence'] ['indemnity Costs' 'offer of Compromise' 'calderbank Offer' 'discretion to Otherwise Order' 'realistic Assessment of Litigation Risk']

Case Brief

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Procedural Posture

Application for Indemnity Costs / Motion After Judgment for the Plaintiff and After Dismissal of the Defendants' Appeal

Legal Issues

  1. 1 ['Whether the plaintiff was entitled to indemnity costs after making an offer of compromise that was more favourable to the defendants than the judgment ultimately obtained.' "Whether the Court should otherwise order because the plaintiff's case, particularly future economic loss, allegedly changed after the offer of compromise." "Whether the defendants' rejection of the later Calderbank offer was unreasonable so as to justify indemnity costs from that date."]

Ratio Decidendi

The defendants did not establish a discretionary basis to displace the plaintiff's prima facie entitlement to indemnity costs under Pt 52A r 22(4). At the time of the offer of compromise, the defendants had material showing chronic post-traumatic stress disorder, major depression, ongoing disability and only limited return to emergency medicine, so the later failure to resume full-time work and the enlargement of the future economic loss claim were foreseeable and were not a change that made indemnity costs inappropriate. In any event, the later Calderbank offer was reasonable and its rejection was unreasonable.

Court Disposition

Plaintiff awarded indemnity costs after 13 November 2002 and costs of the Motion.

Orders

  • ['That the plaintiff should have indemnity costs in respect of costs incurred after 13 November 2002.' 'The plaintiff should have the costs of this Motion.']