Dailhou v Kelly; State of NSW v Kelly (No 3) [2014] NSWSC 1220

Dailhou v Kelly; State of NSW v Kelly (No 3) [2014] NSWSC 1220

Both offers of compromise were made in accordance with r 20.26 of the Uniform Civil Procedure Rules 2005 (NSW). The Dailhou offer validly proposed costs as agreed or assessed under the amended r 20.26(3)(b), and its reference to judgment for $600,000 was not ambiguous because s 151Z of the Workers Compensation Act 1987 (NSW) would operate of its own force in relation to workers compensation payments. The recovery offer validly specified timing for payment under r 20.26(8), and its requirements concerning an authority to receive and payment of agreed or assessed costs did not render it uncertain or non-compliant. There was no proper basis to order otherwise than the costs consequences...

Jurisdiction
Australia
Judgment Date
03 September 2014
Procedural Posture
Costs Application in Common Law Proceedings / Application for Special Costs Orders Following Publication of Reasons for Judgment
Outcome
Special costs orders made for the defendants in both proceedings.
Legal Topics
['offers of Compromise' 'indemnity Costs' 'validity of Offers Under Uniform Civil Procedure Rules 2005 (nsw)' 'calderbank Offers' 'workers Compensation Act 1987 (nsw) S 151 Z']
['costs' 'civil Procedure' 'workers Compensation Recovery'] ['offers of Compromise' 'indemnity Costs' 'validity of Offers Under Uniform Civil Procedure Rules 2005 (nsw)' 'calderbank Offers' 'workers Compensation Act 1987 (nsw) S 151 Z']

Case Brief

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Procedural Posture

Costs Application in Common Law Proceedings / Application for Special Costs Orders Following Publication of Reasons for Judgment

Legal Issues

  1. 1 ['Whether the offer of compromise dated 29 November 2013 in proceedings 2010/158994 complied with r 20.26 of the Uniform Civil Procedure Rules 2005 (NSW).' 'Whether an offer proposing costs as agreed or assessed was valid under the amended r 20.26(3)(b) of the Uniform Civil Procedure Rules 2005 (NSW).' 'Whether the offer for judgment in the sum of $600,000 was uncertain because it did not specify whether workers compensation payments would be deducted.' 'Whether the recovery offer dated 3 September 2013 in proceedings 2011/233293 complied with r 20.26 of the Uniform Civil Procedure Rules 2005 (NSW).' 'Whether conditions for payment upon receipt of an authority to receive and upon agreement or assessment of costs rendered the recovery offer uncertain or outside r 20.26.']

Ratio Decidendi

Both offers of compromise were made in accordance with r 20.26 of the Uniform Civil Procedure Rules 2005 (NSW). The Dailhou offer validly proposed costs as agreed or assessed under the amended r 20.26(3)(b), and its reference to judgment for $600,000 was not ambiguous because s 151Z of the Workers Compensation Act 1987 (NSW) would operate of its own force in relation to workers compensation payments. The recovery offer validly specified timing for payment under r 20.26(8), and its requirements concerning an authority to receive and payment of agreed or assessed costs did not render it uncertain or non-compliant. There was no proper basis to order otherwise than the costs consequences...

Court Disposition

Special costs orders made for the defendants in both proceedings.

Orders

  • ["Proceedings 2010/158994: Order the plaintiff to pay the defendants' costs on the ordinary basis up to and including 29 November 2013 and on an indemnity basis thereafter." "Proceedings 2011/233293: Order the plaintiff to pay the defendants' costs on the ordinary basis up to and including 3 September 2013 and on an...