Maestrale v Aspite (No 2) [2012] NSWSC 1421

Maestrale v Aspite (No 2) [2012] NSWSC 1421

Fullerton J considered herself bound by Old v McInnes and Hodgkinson to hold that the defendants' offer, which included payment of the plaintiff's costs as agreed or assessed, was not a complying offer under r 20.26 of the Uniform Civil Procedure Rules 2005 and was not capable of constituting a Calderbank offer. However, the invalid offer was a genuine early compromise offer and could be considered in the costs discretion. The plaintiff's untruthful evidence about his dealings with the defendants caused unnecessarily lengthy proceedings and greatly increased the costs of litigation, justifying displacement of the ordinary rule as to costs. The plaintiff's attempt to reopen the damages...

Jurisdiction
Australia
Judgment Date
22 November 2012
Procedural Posture
Costs Decision Following Findings on Liability and Damages Issues / Resumed Hearing After Publication of Substantive Judgment; Final Orders Referred to Maestrale V Aspite [2012] NSWSC 1421
Outcome
Plaintiff's application to reopen the proceedings was refused; the defendants' offer was not treated as a valid UCPR offer of compromise or Calderbank offer, but was considered in the costs discretion; the ordinary rule as to costs was displaced. Final orders were stated to be in Maestrale v Aspite [2012] NSWSC 1421.
Legal Topics
['offer of Compromise' 'uniform Civil Procedure Rules 2005 R 20.26' 'indemnity Costs' 'calderbank Offer' 'costs Discretion' 'discounting Costs for Conduct of Litigation']
['civil Procedure' 'costs'] ['offer of Compromise' 'uniform Civil Procedure Rules 2005 R 20.26' 'indemnity Costs' 'calderbank Offer' 'costs Discretion' 'discounting Costs for Conduct of Litigation']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Costs Decision Following Findings on Liability and Damages Issues / Resumed Hearing After Publication of Substantive Judgment; Final Orders Referred to Maestrale V Aspite [2012] NSWSC 1421

Legal Issues

  1. 1 ["Whether the defendants' offer to compromise by paying $400,000 and the plaintiff's costs as assessed or agreed complied with r 20.26 of the Uniform Civil Procedure Rules 2005." 'Whether the defendants were entitled to indemnity costs under r 42.15A of the Uniform Civil Procedure Rules 2005.' 'Whether the offer could operate as a Calderbank offer.' "Whether the ordinary rule as to costs should be displaced or modified because of the plaintiff's conduct of the litigation." "Whether the plaintiff's application to reopen the proceedings to advance further argument on damages should be refused."]

Ratio Decidendi

Fullerton J considered herself bound by Old v McInnes and Hodgkinson to hold that the defendants' offer, which included payment of the plaintiff's costs as agreed or assessed, was not a complying offer under r 20.26 of the Uniform Civil Procedure Rules 2005 and was not capable of constituting a Calderbank offer. However, the invalid offer was a genuine early compromise offer and could be considered in the costs discretion. The plaintiff's untruthful evidence about his dealings with the defendants caused unnecessarily lengthy proceedings and greatly increased the costs of litigation, justifying displacement of the ordinary rule as to costs. The plaintiff's attempt to reopen the damages...

Court Disposition

Plaintiff's application to reopen the proceedings was refused; the defendants' offer was not treated as a valid UCPR offer of compromise or Calderbank offer, but was considered in the costs discretion; the ordinary rule as to costs was displaced. Final orders were stated to be in Maestrale v Aspite [2012] NSWSC 1421.

Orders

  • ["The plaintiff's application to reopen the proceedings was refused." 'See Maestrale v Aspite [2012] NSWSC 1421 for final orders.']