Yisheng Construction Pty Ltd v City Garden Australia Pty Ltd (No 2) [2022] NSWSC 452

Yisheng Construction Pty Ltd v City Garden Australia Pty Ltd (No 2) [2022] NSWSC 452

The first defendant's offer was not a genuine offer of compromise when assessed objectively at the time it was made. Although the first defendant had incurred significant costs, the plaintiffs' claim was not weak: there was a real issue whether the first defendant was liable to pay amounts owing to the plaintiffs by the builder and what amounts, if any, remained owing. Those matters were capable of compromise, so UCPR r 42.15A did not warrant the indemnity costs order sought.

Jurisdiction
Australia
Judgment Date
19 April 2022
Procedural Posture
Costs / Notice of Motion Filed on 15 March 2022 Seeking to Vary the Costs Order After Judgment
Outcome
Notice of motion dismissed with costs.
Legal Topics
['offer of Compromise' 'walk Away Offer' 'indemnity Costs' 'genuine Offer of Compromise' 'uniform Civil Procedure Rules 2005 (nsw)']
['civil Procedure' 'costs'] ['offer of Compromise' 'walk Away Offer' 'indemnity Costs' 'genuine Offer of Compromise' 'uniform Civil Procedure Rules 2005 (nsw)']

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Procedural Posture

Costs / Notice of Motion Filed on 15 March 2022 Seeking to Vary the Costs Order After Judgment

Legal Issues

  1. 1 ["Whether the first defendant's 19 May 2021 offer to settle the whole proceedings with judgment for the first defendant and no order as to costs was a genuine offer of compromise." 'Whether UCPR r 42.15A entitled the first defendant to ordinary costs up to 19 May 2021 and indemnity costs from 20 May 2021.']

Ratio Decidendi

The first defendant's offer was not a genuine offer of compromise when assessed objectively at the time it was made. Although the first defendant had incurred significant costs, the plaintiffs' claim was not weak: there was a real issue whether the first defendant was liable to pay amounts owing to the plaintiffs by the builder and what amounts, if any, remained owing. Those matters were capable of compromise, so UCPR r 42.15A did not warrant the indemnity costs order sought.

Court Disposition

Notice of motion dismissed with costs.

Orders

  • ['Notice of motion filed on 15 March 2022 be dismissed with costs.']