In the matter of Mediation & Online Dispute Resolution Operating Network Pty Ltd (No 2) [2022] NSWSC 289

In the matter of Mediation & Online Dispute Resolution Operating Network Pty Ltd (No 2) [2022] NSWSC 289

The 8-day acceptance period was reasonable in the circumstances because the defendants had terminated their solicitors' retainer shortly before trial, the proceedings had been on foot for almost two years, evidence and reply evidence had long been served, mediation had occurred while the defendants were legally represented, and Mr Polito had the information necessary to assess the offer and immediately rejected it. The plaintiffs obtained judgment no less favourable than the offer, so r 42.14(2) entitled them to indemnity costs from after 4 October 2021.

Jurisdiction
Australia
Judgment Date
17 March 2022
Procedural Posture
Motion to Vary Costs Order After Judgment / Determined on the Papers
Outcome
Indemnity costs order made.
Legal Topics
['offer of Compromise' 'indemnity Costs' 'reasonable Time for Acceptance' 'self Represented Litigants' 'variation of Orders']
['costs' 'civil Procedure'] ['offer of Compromise' 'indemnity Costs' 'reasonable Time for Acceptance' 'self Represented Litigants' 'variation of Orders']

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Procedural Posture

Motion to Vary Costs Order After Judgment / Determined on the Papers

Legal Issues

  1. 1 ['Whether the Offer of Compromise complied with r 20.26 of the Uniform Civil Procedure Rules 2005 (NSW) despite being made 8 days before trial.' 'Whether the closing date for acceptance was reasonable in the circumstances.' 'Whether the plaintiffs were entitled to indemnity costs from after 4 October 2021 under r 42.14(2) of the Uniform Civil Procedure Rules 2005 (NSW).']

Ratio Decidendi

The 8-day acceptance period was reasonable in the circumstances because the defendants had terminated their solicitors' retainer shortly before trial, the proceedings had been on foot for almost two years, evidence and reply evidence had long been served, mediation had occurred while the defendants were legally represented, and Mr Polito had the information necessary to assess the offer and immediately rejected it. The plaintiffs obtained judgment no less favourable than the offer, so r 42.14(2) entitled them to indemnity costs from after 4 October 2021.

Court Disposition

Indemnity costs order made.

Orders

  • ["Pursuant to rule 36.16(3A) and rule 42.14(2) of the Uniform Civil Procedure Rules 2005 (NSW), vary Order 5 made on 23 February 2022 to provide: Order the defendants to pay the plaintiffs' costs of the proceedings on an ordinary basis up to 4 October 2021 and on an indemnity basis thereafter."]