Houghton v Potts & Anor (No 3) [2023] NSWSC 69

Houghton v Potts & Anor (No 3) [2023] NSWSC 69

The 25 July 2018 offer was a genuine compromise because it offered $800,000 exclusive of the plaintiff's legal costs, was accompanied by detailed Calderbank reasoning, followed service of expert and factual evidence supporting the defendants' case, and was made in a proceeding involving significant liability issues. The plaintiff failed to show that the Court should decline to order indemnity costs under r 42.15A. The 2 March 2017 offer did not justify indemnity costs because it was made soon after commencement, the issues were still developing, supporting evidence had not been served, and it involved no monetary payment.

Jurisdiction
Australia
Judgment Date
10 February 2023
Procedural Posture
Costs Application in Common Law Proceedings / Application to Vary Costs Order Made After Dismissal of Proceedings
Outcome
Costs order varied in proceedings 2016/144762; indemnity costs ordered from 26 July 2018.
Legal Topics
['offer of Compromise Under UCPR R 20.26' 'indemnity Costs Under UCPR R 42.15 A' 'genuine Offer of Compromise' 'variation of Costs Order']
['civil Procedure' 'costs'] ['offer of Compromise Under UCPR R 20.26' 'indemnity Costs Under UCPR R 42.15 A' 'genuine Offer of Compromise' 'variation of Costs Order']

Case Brief

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Procedural Posture

Costs Application in Common Law Proceedings / Application to Vary Costs Order Made After Dismissal of Proceedings

Legal Issues

  1. 1 ["Whether the defendants were entitled to indemnity costs under r 42.15A of the Uniform Civil Procedure Rules 2005 (NSW) following the plaintiff's non-acceptance of offers of compromise." 'Whether the offers of compromise constituted a genuine compromise.' 'Which offer, if any, should found an order for indemnity costs.']

Ratio Decidendi

The 25 July 2018 offer was a genuine compromise because it offered $800,000 exclusive of the plaintiff's legal costs, was accompanied by detailed Calderbank reasoning, followed service of expert and factual evidence supporting the defendants' case, and was made in a proceeding involving significant liability issues. The plaintiff failed to show that the Court should decline to order indemnity costs under r 42.15A. The 2 March 2017 offer did not justify indemnity costs because it was made soon after commencement, the issues were still developing, supporting evidence had not been served, and it involved no monetary payment.

Court Disposition

Costs order varied in proceedings 2016/144762; indemnity costs ordered from 26 July 2018.

Orders

  • ["Vary order 2 made on 22 December 2022, as follows: order the plaintiff to pay the defendants' costs on the ordinary basis up to 26 July 2018 to be assessed on the ordinary basis and, thereafter, to be assessed on an indemnity basis."]