Adcock Private Equity v Porges (No 2) [2018] NSWSC 1636

Adcock Private Equity v Porges (No 2) [2018] NSWSC 1636

The offer of compromise was valid under UCPR r 20.26 because the offer itself was separate from the covering letter and did not include an amount for costs; the reference to costs in the letter reflected the consequence of UCPR r 42.13A. APE obtained judgment against Mr Porges no less favourable than the offer, so UCPR r 42.14(2) applied and costs were to be assessed on the ordinary basis until 12 October 2017 and on the indemnity basis thereafter. The bank guarantees should not be returned because they secured potential costs liability to Mrs Porges, that liability had crystallised, and the amount had not yet been agreed, assessed or paid.

Jurisdiction
Australia
Judgment Date
30 October 2018
Procedural Posture
Costs Application and Application for Return of Bank Guarantees Following Judgment on a Misleading or Deceptive Conduct Claim / On the Papers After Judgment; Costs Reserved
Outcome
First defendant ordered to pay the plaintiff's costs of its claim against him, assessed on the ordinary basis until 12 October 2017 and on the indemnity basis thereafter; plaintiff's application for return of bank guarantees dismissed.
Legal Topics
['indemnity Costs' 'offer of Compromise' 'calderbank Offer' 'security for Costs' 'bank Guarantees']
['civil Procedure' 'costs'] ['indemnity Costs' 'offer of Compromise' 'calderbank Offer' 'security for Costs' 'bank Guarantees']

Case Brief

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Procedural Posture

Costs Application and Application for Return of Bank Guarantees Following Judgment on a Misleading or Deceptive Conduct Claim / On the Papers After Judgment; Costs Reserved

Legal Issues

  1. 1 ["Whether the plaintiff's offer of compromise dated 12 October 2017 was valid for the purposes of UCPR r 20.26." 'Whether the plaintiff obtained judgment no less favourable than the terms of its offer so as to attract indemnity costs under UCPR r 42.14(2).' 'Whether the offer should alternatively be treated as a Calderbank offer.' "Whether bank guarantees provided as security for costs should be returned before the second defendant's costs were agreed, assessed and paid."]

Ratio Decidendi

The offer of compromise was valid under UCPR r 20.26 because the offer itself was separate from the covering letter and did not include an amount for costs; the reference to costs in the letter reflected the consequence of UCPR r 42.13A. APE obtained judgment against Mr Porges no less favourable than the offer, so UCPR r 42.14(2) applied and costs were to be assessed on the ordinary basis until 12 October 2017 and on the indemnity basis thereafter. The bank guarantees should not be returned because they secured potential costs liability to Mrs Porges, that liability had crystallised, and the amount had not yet been agreed, assessed or paid.

Court Disposition

First defendant ordered to pay the plaintiff's costs of its claim against him, assessed on the ordinary basis until 12 October 2017 and on the indemnity basis thereafter; plaintiff's application for return of bank guarantees dismissed.

Orders

  • ["Order that the first defendant pay the plaintiff's costs of its claim against him." 'Order that those costs be assessed on the ordinary basis up until 12 October 2017 and on the indemnity basis thereafter.' 'Direct that the costs so payable include the costs of the application for indemnity costs.' "Dismiss the...