Bailey v Director General, Department of Natural Resources (formerly known as Department of Land and Water Conservation) (No 2) [2014] NSWSC 1227

Bailey v Director General, Department of Natural Resources (formerly known as Department of Land and Water Conservation) (No 2) [2014] NSWSC 1227

The defendants' 13 May 2011 offer was compliant with r 20.26, was a genuine and reasonable offer of compromise, and the defendants obtained judgment on the plaintiffs' claims that was no less favourable than the offer. The plaintiffs did not establish any discretionary basis to displace r 42.15A, including by reference to damages or the defence of illegality. The defendants were therefore entitled to ordinary costs up to 13 May 2011 and indemnity costs on and after 14 May 2011, subject to specified existing costs orders remaining undisturbed.

Jurisdiction
Australia
Judgment Date
05 September 2014
Procedural Posture
Costs Application Following Judgment for the Defendants / Question of Costs Dealt With on the Papers After Judgment Was Given for Each Defendant on 25 July 2014
Outcome
Costs ordered in favour of the defendants, including indemnity costs from 14 May 2011.
Legal Topics
['offer of Compromise' 'indemnity Costs' 'ordinary Costs' 'uniform Civil Procedure Rules 2005 (nsw) R 20.26' 'uniform Civil Procedure Rules 2005 (nsw) R 42.15 A']
['civil Procedure' 'costs'] ['offer of Compromise' 'indemnity Costs' 'ordinary Costs' 'uniform Civil Procedure Rules 2005 (nsw) R 20.26' 'uniform Civil Procedure Rules 2005 (nsw) R 42.15 A']

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Procedural Posture

Costs Application Following Judgment for the Defendants / Question of Costs Dealt With on the Papers After Judgment Was Given for Each Defendant on 25 July 2014

Legal Issues

  1. 1 ["Whether the defendants' 13 May 2011 offer of compromise complied with the Uniform Civil Procedure Rules 2005 (NSW)." 'Whether the offer of compromise was a genuine and reasonable offer or merely a token offer designed to trigger costs consequences.' 'Whether the defendants obtained a judgment no less favourable than the terms of the offer so as to engage r 42.15A of the Uniform Civil Procedure Rules 2005 (NSW).' 'Whether discretionary considerations justified displacing the indemnity costs consequences under r 42.15A.' 'Whether the defendants should be deprived of costs relating to damages or the defence of illegality.']

Ratio Decidendi

The defendants' 13 May 2011 offer was compliant with r 20.26, was a genuine and reasonable offer of compromise, and the defendants obtained judgment on the plaintiffs' claims that was no less favourable than the offer. The plaintiffs did not establish any discretionary basis to displace r 42.15A, including by reference to damages or the defence of illegality. The defendants were therefore entitled to ordinary costs up to 13 May 2011 and indemnity costs on and after 14 May 2011, subject to specified existing costs orders remaining undisturbed.

Court Disposition

Costs ordered in favour of the defendants, including indemnity costs from 14 May 2011.

Orders

  • ["The plaintiffs pay the defendants' costs of the proceedings on an ordinary basis from 10 November 2006 to 13 May 2011." "The plaintiffs pay the defendants' costs of the proceedings on an indemnity basis on and after 14 May 2011, including all reserved costs and costs ordered to be costs in the cause, but that the...