Virginia Nemeth (by her tutor) v Australian Litigation Funders Pty Ltd and Ors (No 2) [2013] NSWSC 679

Virginia Nemeth (by her tutor) v Australian Litigation Funders Pty Ltd and Ors (No 2) [2013] NSWSC 679

The defendants' offer was not an offer of compromise within Part 20, Division 4 of the UCPR because it required the plaintiff/cross-defendant to pay the defendants'/cross-claimants' costs. That stipulation was not exclusive of costs and, on the approach in Vieira v O'Shea (No 2), operated inconsistently with r 42.13A, which would have entitled the plaintiff to costs if a defendant's offer were accepted. The offer also was not expressed to operate as a Calderbank offer. The defendants were therefore not entitled to indemnity costs based on the offer.

Jurisdiction
Australia
Judgment Date
31 May 2013
Procedural Posture
Costs / Post Judgment Hearing on Costs and Short Minutes of Order
Outcome
The defendants are not entitled to an order for indemnity costs.
Legal Topics
['offer of Compromise' 'indemnity Costs' 'exclusive of Costs Requirement' 'calderbank Offer']
['civil Procedure' 'costs'] ['offer of Compromise' 'indemnity Costs' 'exclusive of Costs Requirement' 'calderbank Offer']

Case Brief

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Procedural Posture

Costs / Post Judgment Hearing on Costs and Short Minutes of Order

Legal Issues

  1. 1 ["Whether the defendants' 28 May 2012 offer of compromise complied with r 20.26 of the Uniform Civil Procedure Rules 2005." "Whether the offer was invalid under the offer of compromise regime because it required the plaintiff/cross-defendant to pay the defendants'/cross-claimants' costs." 'Whether the defendants were entitled to indemnity costs for the period 29 May 2012 to 24 May 2013 inclusive.' 'Whether the offer took effect as a Calderbank offer.']

Ratio Decidendi

The defendants' offer was not an offer of compromise within Part 20, Division 4 of the UCPR because it required the plaintiff/cross-defendant to pay the defendants'/cross-claimants' costs. That stipulation was not exclusive of costs and, on the approach in Vieira v O'Shea (No 2), operated inconsistently with r 42.13A, which would have entitled the plaintiff to costs if a defendant's offer were accepted. The offer also was not expressed to operate as a Calderbank offer. The defendants were therefore not entitled to indemnity costs based on the offer.

Court Disposition

The defendants are not entitled to an order for indemnity costs.

Orders

  • ['The defendants are not entitled to order 6 in their proposed short minutes of order.' 'The parties are invited to prepare further short minutes of order accordingly.']