AB v Keanes (No 2) [2019] NSWDC 765

AB v Keanes (No 2) [2019] NSWDC 765

The court declined to order indemnity costs because, although the defendant’s offers of compromise were more favourable than the judgment, not all material medical reports were served before the expiry of the offers—these reports were relevant to quantum and assessment of damages. Further, the plaintiff’s tutor suffered a medical emergency during the offer period, precluding proper consideration. In all the circumstances, it was reasonable for the plaintiff not to accept the offers, and the court exercised its discretion to 'otherwise order' under UCPR 42.15(2), confirming the ordinary costs order in favour of the plaintiff.

Jurisdiction
Australia
Judgment Date
19 December 2019
Procedural Posture
Civil / Post Judgment Costs Application
Outcome
Defendant’s oral application for indemnity costs dismissed. Plaintiff’s costs order confirmed.
Legal Topics
['offers of Compromise' 'indemnity Costs' 'calderbank Offer' 'service of Medical Reports' 'reasonableness of Rejection of Offer']
['costs'] ['offers of Compromise' 'indemnity Costs' 'calderbank Offer' 'service of Medical Reports' 'reasonableness of Rejection of Offer']

Case Brief

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Procedural Posture

Civil / Post Judgment Costs Application

Legal Issues

  1. 1 ['Whether indemnity costs should be ordered under UCPR 42.15(2) when the plaintiff obtained a judgment less favourable than the defendant’s offers of compromise; whether the rejection of the offers was unreasonable in all the circumstances; whether the Calderbank offer justified indemnity costs']

Ratio Decidendi

The court declined to order indemnity costs because, although the defendant’s offers of compromise were more favourable than the judgment, not all material medical reports were served before the expiry of the offers—these reports were relevant to quantum and assessment of damages. Further, the plaintiff’s tutor suffered a medical emergency during the offer period, precluding proper consideration. In all the circumstances, it was reasonable for the plaintiff not to accept the offers, and the court exercised its discretion to 'otherwise order' under UCPR 42.15(2), confirming the ordinary costs order in favour of the plaintiff.

Court Disposition

Defendant’s oral application for indemnity costs dismissed. Plaintiff’s costs order confirmed.

Orders

  • ['The oral application for indemnity costs made by the defendant is dismissed.' "The defendant is to pay the plaintiff's costs of the oral application for indemnity costs as agreed or assessed." 'The costs order made in favour of the plaintiff on 20 November 2019 is confirmed.']