In the matter of Beverage Freight Services Pty Ltd [2022] NSWSC 1040

In the matter of Beverage Freight Services Pty Ltd [2022] NSWSC 1040

The plaintiffs did not discharge their onus to justify departure from the ordinary consequences under r 42.15A(2). By 26 October 2017 they had sufficient information to assess the defendants' offer, including lay evidence, evidence concerning quantum, and the known significance of the Ingleburn meeting, and the offer involved a genuine compromise. The later matters relied on, including discovery, expert evidence, the abandoned s 237 application and the Toll amendments, did not make it inappropriate to order indemnity costs from 27 October 2017.

Jurisdiction
Australia
Judgment Date
03 August 2022
Procedural Posture
Costs; Equity Corporations List / On the Papers Following Judgment Dismissing the Plaintiffs' Claims; Reserved Costs Determination
Outcome
The defendants obtained costs on the ordinary basis up to and including 26 October 2017 and on an indemnity basis from 27 October 2017, except for costs already covered by specific costs orders.
Legal Topics
['offer of Compromise' 'indemnity Costs' 'ordinary Basis Costs' 'discretion to Depart From Costs Consequences' 'derivative Proceedings']
['civil Procedure' 'costs' 'corporations'] ['offer of Compromise' 'indemnity Costs' 'ordinary Basis Costs' 'discretion to Depart From Costs Consequences' 'derivative Proceedings']

Case Brief

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Procedural Posture

Costs; Equity Corporations List / On the Papers Following Judgment Dismissing the Plaintiffs' Claims; Reserved Costs Determination

Legal Issues

  1. 1 ["Whether the plaintiffs should pay the defendants' costs on the ordinary basis or on an indemnity basis after failing to accept the defendants' offer of compromise made on 26 October 2017." 'Whether the Court should exercise its discretion under r 42.15A(2) of the Uniform Civil Procedure Rules 2005 (NSW) to depart from the prima facie indemnity costs consequence.' 'Whether the plaintiffs had sufficient information at the time of the offer to assess quantum and whether the offer involved a genuine compromise.' 'Whether changes in the case after the offer made it inappropriate to order indemnity costs from 27 October 2017.']

Ratio Decidendi

The plaintiffs did not discharge their onus to justify departure from the ordinary consequences under r 42.15A(2). By 26 October 2017 they had sufficient information to assess the defendants' offer, including lay evidence, evidence concerning quantum, and the known significance of the Ingleburn meeting, and the offer involved a genuine compromise. The later matters relied on, including discovery, expert evidence, the abandoned s 237 application and the Toll amendments, did not make it inappropriate to order indemnity costs from 27 October 2017.

Court Disposition

The defendants obtained costs on the ordinary basis up to and including 26 October 2017 and on an indemnity basis from 27 October 2017, except for costs already covered by specific costs orders.

Orders

  • ['Subject to order (2), order the plaintiffs to pay the defendants costs of the proceedings on the ordinary basis up to and including 26 October 2017 and on an indemnity basis on and from 27 October 2017, in such amount as may be agreed or assessed.' 'Order 1 does not apply to those costs in respect of which the...