Stambolziovski v Nestorovic (No 3) [2014] NSWDC 346

Stambolziovski v Nestorovic (No 3) [2014] NSWDC 346

The Court refused indemnity costs because, considering all relevant circumstances, the offer did not warrant the special costs order sought. Although the first defendant had a prima facie entitlement under r 42.15A, the circumstances included the existence of another party, cross-claims, the likelihood that Ms Nestorovic would remain in the proceedings even if the offer was accepted, uncertainty as to whether the offer represented a genuine compromise because it involved no payment to the plaintiff, the absence of a reasoned explanation of deficiencies in the plaintiff's case, and the absence of evidence comparing costs incurred as at the offer date with costs ultimately incurred. Those...

Jurisdiction
Australia
Judgment Date
04 December 2014
Procedural Posture
Civil Costs Application / Post Judgment Application by the First Defendant for Indemnity Costs Based on an Offer of Compromise
Outcome
Application for indemnity costs dismissed; prior costs orders confirmed; no order as to the costs of the application.
Legal Topics
['offer of Compromise' 'indemnity Costs' 'genuine Compromise' 'reasonableness of Rejecting Offer' 'multiple Defendants and Cross Claims' 'reckoning of Time']
['civil Procedure' 'costs'] ['offer of Compromise' 'indemnity Costs' 'genuine Compromise' 'reasonableness of Rejecting Offer' 'multiple Defendants and Cross Claims' 'reckoning of Time']

Case Brief

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Procedural Posture

Civil Costs Application / Post Judgment Application by the First Defendant for Indemnity Costs Based on an Offer of Compromise

Legal Issues

  1. 1 ['Whether the first defendant was entitled under r 42.15A of the Uniform Civil Procedure Rules 2005 to indemnity costs after making an offer of compromise that was not accepted and obtaining judgment no less favourable than the offer.' 'Whether the offer of compromise was unreasonable to reject and whether reasonableness affected the discretion to order otherwise.' 'Whether the offer represented a genuine compromise where it proposed judgment for the first defendant and each party paying its own costs.' 'Whether the existence of a second defendant and cross-claims affected compliance with r 20.26 and the appropriateness of an indemnity costs order.' 'Whether the offer period complied with r 20.26(5) and r 1.11.']

Ratio Decidendi

The Court refused indemnity costs because, considering all relevant circumstances, the offer did not warrant the special costs order sought. Although the first defendant had a prima facie entitlement under r 42.15A, the circumstances included the existence of another party, cross-claims, the likelihood that Ms Nestorovic would remain in the proceedings even if the offer was accepted, uncertainty as to whether the offer represented a genuine compromise because it involved no payment to the plaintiff, the absence of a reasoned explanation of deficiencies in the plaintiff's case, and the absence of evidence comparing costs incurred as at the offer date with costs ultimately incurred. Those...

Court Disposition

Application for indemnity costs dismissed; prior costs orders confirmed; no order as to the costs of the application.

Orders

  • ['Dismiss the application for indemnity costs and confirm the costs orders made on 30 September 2014.' 'Order that there be no order in respect of the costs of today with the intent that these costs do not fall within the terms of the costs ordered on 30 September 2014 but that each party bear their own costs of...